Can common law partners create a legal and binding separation document without a lawyer?

Custody of child

In Ontario, section 55(1) of the Family Law Act says that for a separation agreement to be a separation agreement, it must be in writing, signed by the parties and witnessed. 

However, the considerations do not end there.  There are additional factors a judge must consider when deciding whether to enforce a separation agreement.  If the court will not enforce a separation agreement, then that agreement is only worth anything while both parties agree to follow the terms.  If one party decides not to follow the terms, and the agreement is not enforceable, then there is nothing the "innocent" party can do.

The other factors that a judge will consider in deciding whether to enforce a separation agreement are set out in section 56 of the Family Law Act.  Judges do not have to follow agreements as they relate to custody, access, or the upbringing of children.  They also do not have to follow agreements with respect to child support where the agreement is not consistent with the Child Support Guidelines.  Any term that requires a party to remain chaste after separation is invalid.

Ontario Family Law Podcast

24 - How to Have a Valid and Enforceable Separation Agreement

However, where many agreements run into trouble, that a lawyer can avoid, is under section 56(4) of the Family Law Act.  You can learn more about those considerations by listening to this podcast, or reading this page.  However, section 56(4)(b) says that a judge can set aside a separation agreement if either party did not understand it.   The evidence that judges look for when trying to decide if someone understood a legal document is whether that person got advice from a lawyer.  As a result, judges frequently refuse to enforce (i.e. ignore) agreements where the parties do not have Certificates of Independent Legal Advice attached to contract.   Section 56(4) lists some additional potential problems that lawyers help their clients avoid to ensure that both parties are bound by the separation agreement.

Obviously, people who sign separation agreements want the certainty that such documents provide against future arguments, fights and claims by a former spouse.  Having an unenforceable contract does not help with that at all. So, seeing a lawyer to get Independent Legal Advice is well worth it.

Another common mistake that people make when signing separation agreements is not understanding what the law says each side should get.  Some people give away way to much, or get way to little, because they don't know what Family Law actually says.  You can get a lot more information about Ontario Family Law issues, including support and property division and most other common family law issues by downloading the latest edition of this best-selling $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer. 

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But the best way to protect yourself, your investment in your home and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 

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