Can You Undo a Separation Agreement You Signed in BC?

You signed a separation agreement, and now it feels unfair, or you have learned something you did not know when you signed. Many people in this position wonder whether the agreement is the end of the matter. In British Columbia, it is not always.

The rules are different for property, spousal support, and children. This article explains each in plain terms, along with the time limit and why advice before signing matters. Your own facts will decide what applies, so a lawyer can confirm how this fits your situation.

This article covers the law of British Columbia.

Is a separation agreement binding?

A separation agreement does not have to be filed or registered with a court to be binding. A lawyer is also not required to make one. That means many people sign agreements privately and treat them as final.

Spouses can also choose a different split of property than the default equal division by making an agreement. So the law generally respects what you agreed. Setting an agreement aside is the exception, and it requires specific grounds.

Setting aside the property part of an agreement

The set-aside rules for property apply to a written agreement where each spouse's signature was witnessed by at least one other person. The same person may witness both signatures.

The Supreme Court may set aside or replace all or part of a property agreement in these situations:

• 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 agreement's nature or consequences.
• Other circumstances would make the agreement unenforceable under the law of contract.

Even if a ground is shown, the court may decline to act if the result would not be substantially different from the agreement. Property claims are heard in the Supreme Court, not the Provincial Court, apart from companion animals.

Spousal support agreements have their own test

A written spousal support agreement can be set aside on grounds such as non-disclosure, improper advantage or lack of understanding. The court may also set aside a spousal support agreement that is significantly unfair.

This is a separate test from the property one. How it applies to an agreement that covers both depends on your situation, so it is worth confirming with a lawyer.

Parenting and child support terms

Children's terms are treated differently because they are not only about the spouses. A parenting agreement is subject to the child's best interests, and if it is not in those interests the court must set aside or replace all or part of it with an order. A child support agreement can be set aside or replaced if the court would make a different order.

If a written parenting, child support or spousal support agreement is filed in court, it can be enforced like a court order. A filed support agreement can also be enforced through the Family Maintenance Enforcement Program.

Time limits and what to do next

You can apply to set aside a property or spousal support agreement within 2 years after you first discovered, or reasonably ought to have discovered, the grounds. The time stops running during family dispute resolution or a prescribed process. Child support and parenting claims are not subject to the general two-year limit for property, pension and spousal support claims.

BC government guidance says it is very important to speak to a lawyer before signing a document that settles matters with a spouse, and it recommends independent legal advice before settling parenting, support or property. If you have already signed, steps to consider:

• Find your signed agreement and note when you first learned of the problem.
• List any property or debts you believe were not disclosed.
• Note who witnessed the signatures.
• Ask a lawyer which parts of the agreement can be challenged and by when.
• Ask about family dispute resolution, which is a process to resolve a dispute outside court.

Frequently asked questions