Can a Separation Agreement Be Set Aside in BC?

After separating, many people sign an agreement to settle things quickly, then later feel it was unfair, rushed or based on incomplete information. The question is whether a court can undo it.

The answer depends on what the agreement covers: property and debts, spousal support or children. Each has its own test under British Columbia's Family Law Act. This article explains those tests in plain language. It is general information, not legal advice.

This article covers the law of British Columbia.

The starting point: agreements are binding

The Family Law Act lets two or more people make an agreement about a family law dispute, and says that agreement is binding on the parties, subject to the Act. A written agreement means one that is in writing and signed by all parties. The Act does not require independent legal advice for a separation agreement to bind you, and it does not name a certificate of independent legal advice. Missing advice can still matter as a factor when the court considers whether you understood the agreement.

Property and debt agreements

If each spouse signed a written property and debt agreement with at least one witness, the Supreme Court may set aside or replace all or part of it only if one of these circumstances existed when it was made:

• a spouse failed to disclose significant property or debts;
• a spouse took improper advantage of the other's vulnerability;
• a spouse did not understand the nature or consequences of the agreement;
• other circumstances that would make a contract voidable at common law.

There is also a safety valve: even where none of those circumstances exist, the court may set aside or replace a witnessed agreement if it is significantly unfair. It considers the time that has passed, the spouses' intention to achieve certainty, and how far they relied on the terms. The court may decline to act if doing so would not substantially change the agreement's terms.

For property covered by an agreement under section 93(1), the court cannot make a property division order unless that agreement is set aside in whole or in part. If the agreement was not witnessed, the court may still apply the same set-aside test where it considers that appropriate.

Spousal support agreements

For a written spousal support agreement with each signature witnessed, the court may set it aside or replace it only if, when it was made, a spouse failed to disclose income, significant property or debts, took improper advantage of the other's vulnerability, or did not understand the agreement's nature or consequences. The court may also act on other grounds that would make a contract voidable at common law, and if the agreement is significantly unfair.

Agreements about children

Children's issues are treated differently. A parenting agreement is binding only if made after separation, or when you are about to separate and intend it to take effect on separation. The court must set aside or replace all or part of it if satisfied it is not in the child's best interests. Child support agreements are similarly binding only if made at that time.

On child support, a court may depart from the guideline amount if the parties consent or have an agreement and the court is satisfied that reasonable arrangements have been made for the child's support.

Changing an agreement and next steps

Not every problem requires a court. If you and your former spouse agree to change the terms, a later agreement that changes an earlier one revokes each changed part, and the unchanged parts remain in effect. A court may also incorporate a written agreement into an order, and where a later order differs, it replaces the part of the agreement that provides differently.

• Find the signed agreement and note whether signatures were witnessed.
• Gather financial records from the time you signed, to compare what was disclosed with what existed.
• Write down how the agreement was reached and what advice, if any, you had.
• Note how much time has passed and how each of you has relied on its terms.
• Speak with a lawyer promptly; whether your facts fit a ground is a legal judgment.

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