Is a separation agreement legally binding in New Brunswick?
This answer covers the law of New Brunswick.
Yes, a separation agreement is generally binding in New Brunswick if it meets the formal requirements. A domestic contract, which includes a separation agreement, and any change to it must be in writing, signed by the parties to be bound, and witnessed. Once valid, it generally prevails over a conflicting provision of the Marital Property Act, subject to some exceptions.
A lawyer is not mandatory for the witnessing rule, but independent legal advice matters. The Court may disregard a provision if a spouse signed without legal advice from a person independent of the other spouse's advisor and applying it would be inequitable in all the circumstances. Support terms get extra scrutiny: the Court may set aside a support provision or a waiver of support where it results in unconscionable circumstances.
A minor with capacity to marry needs Court approval to enter a separation agreement, and for a mentally incompetent person the committee or Public Trustee needs Court approval. Whether your agreement would hold up depends on how it was signed and what it says, so have a lawyer review it before you sign or rely on it.
Key takeaways
- A separation agreement and any change to it must be in writing, signed by the parties to be bound, and witnessed.
- A valid domestic contract generally prevails over a conflicting provision of the Marital Property Act, subject to stated exceptions.
- The Court may disregard a provision if you signed without independent legal advice and applying it would be inequitable in all the circumstances.
- The Court may set aside a support provision or a waiver of support where it results in unconscionable circumstances.