Blog & Resources

Jul 14, 2015

The Unfair Separation Agreement – You’re Not Out of the Woods Yet

Jul 14, 2015

The Unfair Separation Agreement – You’re Not Out of the Woods Yet


This goes to all those couples who think they can enter into template unfair separation agreements without proper independent legal advise to save money. First thing you need to know is that drafting a separation agreement is arguably the least profitable thing to do for a family lawyer. It is also mundane and difficult. Separation agreements are extremely cheap and time consuming compared to other family law issues a lawyer deals with. So our advise for you to enter into a separation agreement is only for your benefit and not ours.

But people don’t always believe us and that is understandable. What we don’t understand for the life of us though, is how people pay about $2000 per year on their car insurance but do not think spending $2,500 to $5,000 to insure their life assets and marital rights for a life time is not worth the investment.

Anyways, don’t take my word for it. Once again, I will direct your attention to yet another family law case where the judge set aside a separation agreement due mainly to it being unfair and lacking independent legal advice below.

What is an Unfair Separation Agreement?

An unfair separation agreement is an agreement that is signed without you knowing full well what all the family assets are, when you and your spouse did not have independent legal advice, you were under pressure to sign the unfair separation agreement, someone took advantage of your vulnerabilities at the time of separation or you made a mistake in signing the separation agreement. It can also happen when you or your spouse walk out with the majority of the family assets without compensating the other properly.

The Unfair Separation Agreement 

In the 2015 BC Supreme Court Case of B.R.A. v. R.W.A., 2015 BCSC 1173, the parties entered in to a separation agreement which was obtained from online template forms where people fill in the required information and agree to division of property and debt.

The parties did not have proper independent legal advice and the court found that the wife had given up many of her rights under circumstances where she was pressured in to signing the agreement. The judge stated as follows:

I consider the following circumstances surrounding the negotiation and execution of the separation agreement cause me to discount it:

a. the separation agreement was executed without the benefit of legal advice;

b. neither party was cognizant of their legal rights and obligations;

c. the agreement was not consistent with the objectives of the Divorce Act in so far as it makes no provision for child support or spousal support, despite there being three young children and a significant disparity in the parties’ earning capacity;

d. the agreement did not provide full disclosure of the parties’ assets. For example the respondent’s pension was not listed;

e. there was no legible provision in the agreement for the disposition of the matrimonial home, although title to the property was subsequently transferred to the respondent; and

The Proper and Fair Separation Agreement

A enforceable separation agreement worth your money will be a separation agreement where:

  1. Both you and your spouse obtain independent legal advice;
  2. It complies with the Family Law Act and the Divorce Act (if applicable);
  3. Both parties fully and transparently disclose financial assets and debts and their values;
  4. Is not drastic and can be interpreted as a relatively fair agreement;
  5. Does not take advantage of a party in a vulnerable financial or emotional state; and
  6. Is witnessed and in writing.

Separation or marriage agreements are complicated, sensitive and important documents that can save you a fortune on separation or divorce.

To obtain an invaluable consult on your rights and compromises regarding separation agreements, contact our award winning firm at 604-974-9529 or email info@ylaw.ca