- A New Brunswick domestic contract, including a separation agreement, must be in writing, signed by the parties to be bound, and witnessed.
- The witnessing rule does not make a lawyer mandatory, but a court may disregard a provision if a spouse signed without independent legal advice and applying it would be inequitable in all the circumstances.
- A valid signed and witnessed agreement on property is generally binding because a domestic contract prevails over a conflicting provision of the Marital Property Act.
You and your partner have worked out who keeps what, who pays what and how the children will be cared for. Before you sign, it helps to know what makes the paper hold up if one of you later has second thoughts.
This article covers the formal signing and witnessing steps under New Brunswick's Marital Property Act, and why independent legal advice matters even where it is not strictly required. It is general information, and a lawyer can review your actual document.
This article covers the law of New Brunswick.
The basic formalities
Under the Marital Property Act, a domestic contract, which includes a separation agreement or marriage contract, and any amendment or rescission of it, must be in writing, signed by the parties to be bound, and witnessed.
- In writing: a spoken deal or an informal text exchange is not enough.
- Signed: by the parties to be bound.
- Witnessed: the signing must be witnessed.
- Changes too: an amendment or rescission needs the same formalities.
Is a lawyer required?
The witnessing rule does not itself make a lawyer mandatory. You are not legally prevented from signing without one.
The risk lies elsewhere. The court may disregard a provision of a domestic contract where a spouse signed without legal advice from a person independent of the other spouse's advisor and applying the provision would be inequitable in all the circumstances. In plain words, if one person had no real advice and the result is unfair, that provision may be at risk.
For that reason, each of you getting your own advice is a practical way to protect the agreement. One lawyer acting for both of you does not give each person independent advice. The numbering of this section differs between versions of the Act, so a lawyer should confirm the current text.
Why a proper agreement matters
Subject to stated exceptions, a domestic contract prevails over a conflicting provision of the Marital Property Act. That is why a valid signed and witnessed separation agreement on property is generally binding.
That also means you may be giving up the approach in the Marital Property Act, under which each spouse is entitled, on application, to have marital property divided in equal shares after divorce, nullity, or separation with no reasonable prospect of resuming cohabitation, or marriage breakdown with no reasonable prospect of reconciliation. Even under the Act, the Court may exclude a family asset acquired before marriage or by gift or inheritance if including it would be unfair and unreasonable to the owner, and it may order unequal shares where equal division would be inequitable. Make sure you understand what you would receive under the Act before you agree to something different.
Where an agreement can still be challenged
| Issue | What the law provides |
|---|---|
| Support terms | The Court may set aside a support provision or a waiver of the right to support where it results in unconscionable circumstances, among other listed circumstances such as default in payment. |
| Minors and incapacity | A minor with capacity to marry may enter a marriage contract or separation agreement only with Court approval, and for a mentally incompetent person the committee or Public Trustee may enter a domestic contract with Court approval. |
| Children | In a divorce proceeding, the court must satisfy itself that reasonable arrangements have been made for the support of any children of the marriage. |
| Parenting terms | In making a parenting order the Court takes into consideration only the best interests of the child. |
So signing an agreement does not remove the court's role on children and, in some cases, on support.
Before you sign: next steps
- Make sure every term is in writing, including property, debts, support and parenting.
- Arrange for each of you to get your own independent legal advice.
- Share complete information about income, assets and debts before signing.
- Sign in front of a witness, and keep the original in a safe place.
- Use the same written, signed and witnessed process for any later change.
- Keep copies of the financial documents you relied on.
If you are unsure whether the agreement is fair or complete, ask a lawyer to review it before you sign, not after a dispute starts.
Frequently asked questions
Does a separation agreement have to be witnessed in New Brunswick?
Yes. A domestic contract, including a separation agreement, must be in writing, signed by the parties to be bound, and witnessed. The same applies to any amendment or rescission.
Do we each need our own lawyer?
The witnessing rule does not make a lawyer mandatory. However, a court may disregard a provision if a spouse signed without independent legal advice and applying it would be inequitable in all the circumstances.
Is a signed agreement final?
A valid, signed and witnessed agreement on property is generally binding because a domestic contract prevails over a conflicting provision of the Act. Support terms can be set aside in unconscionable circumstances, and the court still looks at child arrangements.
Can a minor or someone who lacks capacity sign one?
Only with Court approval in the situations the Act describes. A minor with capacity to marry needs the Court's approval, and for a mentally incompetent person the committee or Public Trustee may sign with Court approval.
Sources
- Divorce Act (Justice Laws) — Justice Laws (federal)
- Family Law Act, SNB 2020, c. 23 — laws.gnb.ca
- Marital Property Act, SNB 2012, c. 107 — laws.gnb.ca
- Marital Property Act (consolidation to 1 March 2013, M-1.1) — laws.gnb.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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