Separation Agreements,
Varying/Setting Aside Agreements

Separation Agreements:

When couples separate, there are usually many decisions that need to be made. For example, spouses will need to arrange which one of them will reside in the home, who will take care of the children, details around access to the children, who will be responsible for family expenses and debts, how much financial assistance will be paid by one spouse to the other, and how their property will be divided.

You can resolve your differences in many different ways, but the vast majority of separating spouses are able to come to an agreement that is referred to as a separation agreement. In order for it to be valid, a separation agreement must be written and signed by both spouses in front of a witness, who must also sign the agreement.

Unless the circumstances of your separation make it unsafe or imprudent to negotiate an agreement (for example, your spouse is violent or unmanageable), it is preferable for separating spouses to reach an agreement through negotiation or mediation. Court proceedings can be very expensive and move slowly.

Preparing and signing a separation agreement is a very important step following separation. Decisions you make now can affect you and your children for the rest of your lives. For these reasons, it is imperative that spouses retain experienced counsel to help them prepare and negotiate separation agreements.

Setting Aside Domestic Contracts:

If your agreement is no longer fair after your relationship ends, or if you and your partner cannot agree on how to vary the terms of your agreement, you may have to commence a court application to resolve your differences.

While our courts will typically recognize and uphold the terms of a domestic contract, in certain cases when one party has applied to vary or set aside his or her domestic contract, the court may change or set aside the terms of the agreement.

For example, a court can vary or set aside a domestic contract when:

  • a spouse has misrepresented his or her financial circumstances;
  • one of the spouses was under duress or coerced when signing the contract;
  • a spouse did not understand the agreement when it was signed (i.e. because he or she did not have the benefit of independent legal advice); and/or
  • the agreement is unconscionable (i.e. grossly unfair).

The law regarding the preparation and setting aside of domestic contracts can be quite complex. It is recommended that you obtain strong legal representation in the negotiation of your domestic contract or when you are facing or bringing an application to vary or set aside your contract. At Ambrosino Law Group, we have significant experience successfully advancing and defending such cases.

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