Enforcing BC Separation Agreements or Settlements under the BC Family Law Act

Enforcing a BC Separation Agreement or Settlement can be one of the most frustrating issues in family law. Many people try to end their marriage or cohabitation on amicable terms. They negotiate a settlement and instruct their lawyers to draw up a BC separation agreement or terms of settlement. After the agreement is finalized, one party may:

1. Try to cancel the separation agreement
2. Challenge the settlement
3. Vary the separation agreement, or
4. Argue that the agreement is unfair or should be set aside.

The other party gets frustrated and tries to enforce the settlement or separation agreement.

Enforcing BC Separation Agreements Through Evidence

If you negotiate a settlement in front of a mediator or a third party, you can call the mediator or the third party as a witness and examine them under oath. It is always a good idea to have a BC family lawyer by your side when negotiating a settlement because they can be witnesses too. This provides evidence for the court on:

1. Whether there was a settlement, and if so
2. What were the terms of the BC separation agreement.

This is usually done by conducting an examination for discovery under which the mediator or the third party gives evidence under oath on what happened during the negotiations.

The evidence then gets handed over to a judge, and the judge will determine whether there was an agreement. But that is not the end. The next step is to show that the agreement was fair and should not be cancelled or set aside.

Our BC Family Law Act says that a separation agreement, marriage agreement or settlement can be varied or cancelled if:

(3) …one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

Enforcing BC Separation Agreements Through Procedure

To ensure you can adequately uphold and enforce a BC separation agreement, marriage agreement or settlement, you must ensure that:

1. Both you and your spouse had independent legal advice. This shows that both of you knew what you were getting into and settled freely with proper knowledge of the consequences. It is vital to have the assistance of a BC family lawyer to help you achieve this.
2. Both you and your spouse fully and completely disclosed your finances and assets to one another. If you hide or fail to provide proper disclosure, then you risk having the agreement cancelled.
3. Both you and your spouse entered the agreement without forcing, threatening or putting undue influence on one another. Make sure you have a witness when either of you signs the agreement.

The BC Family Law Act now puts a huge emphasis on upholding agreements and respecting private dealings between individuals. BC separation or marriage agreements are almost as strong as court orders but they must be done correctly.

Do not buy template agreements on Google or Staples and think that you can enter into these very important contracts without proper legal advice and a BC Family Lawyer properly drafting a customized and enforceable agreement based on the BC Family Law Act. 

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