How to Make a Separation Agreement Enforceable in BC

A separation agreement can give you certainty about property, debts, support and children. Whether it holds up later depends on how it was made and what it covers.

This article walks through the signing, witnessing, disclosure and fairness points in British Columbia's Family Law Act, and the situations where a court can set an agreement aside. It is general information, not advice.

This article covers the law of British Columbia.

Put it in writing and sign it

An agreement about a family law dispute is binding on the parties, subject to the Act. A written agreement is one that is in writing and signed by all parties. Keep it clear about what it covers, since a later agreement that changes it revokes only the changed parts.

Some agreements have extra conditions. The Act sets further conditions for parenting, child support and property agreements, which are covered below. If you and your former partner are still working things out, family dispute resolution is a process parties use to try to resolve disputed issues outside court, and it includes mediation, arbitration and collaborative family law.

A court can also incorporate all or part of a written agreement into an order. Where an agreement and a later order differ, the order replaces the part of the agreement that provides differently.

Witnessing and why it matters

For a written property-and-debt agreement that each spouse signed with at least one witness, the Supreme Court may set it aside or replace it only if a listed circumstance existed when it was made. The court may also apply the same test to an agreement that was not witnessed, where it considers that appropriate.

For spousal support, a similar rule applies where each signature is witnessed. Witnessing therefore affects how hard it is to challenge the agreement.

Disclosure, understanding and fairness

• Non-disclosure: a spouse failed to disclose significant property or debts, and for spousal support, income.
• Improper advantage: a spouse took improper advantage of the other's vulnerability.
• No understanding: a spouse did not understand the nature or consequences of the agreement.
• Contract grounds: other circumstances that would make a contract voidable at common law.
• Significant unfairness: the court may act even if none of those exist, considering the time elapsed, the spouses' intention to achieve certainty and how much they relied on the terms. For spousal support, the court may also act if the agreement is significantly unfair.

Each spouse must give the other full and true information to resolve the dispute. The court may decline to act if doing so would not substantially change the agreement's terms.

Missing disclosure is a common place for a challenge to start. Keeping records of what each of you shared helps show what was known when the agreement was made.

Independent legal advice and children

The Act sections on agreements do not require independent legal advice for a separation agreement to bind the parties, and the Act does not name a certificate of independent legal advice. Advice can still matter, because the grounds for setting aside include not understanding the agreement and vulnerability.

Terms about children are different. A parenting agreement is binding only if made after separation, or when you are about to separate and intend it to take effect then. The same timing applies to child support. A court must replace parenting terms that are not in the child's best interests.

For 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 support of the child. Filed contact agreements are reviewable on the same best-interests basis as parenting agreements.

What to do next

• Exchange complete financial information before signing.
• Sign in writing, with each signature witnessed.
• Consider getting independent legal advice for each spouse.
• File the agreement in court if you want it enforceable like an order for parenting, child support or spousal support.
• Keep records showing what each of you disclosed.

A written agreement under the Family Law Act is filed by attaching it to a requisition in Form F17.1, and the court may then enforce the filed agreement on application. How this applies depends on your situation, so it is worth confirming with a lawyer before you sign.

Frequently asked questions