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My wife and I are in the middle of finalizing our separation agreement. We have both agreed to the terms and we both have decided not to obtain independent legal advice. I have decided to stay in the house instead of selling. I will buy out her portion and take out a new mortgage. The house will be transferred into my name. What I’m concerned about is the increase in property value between the time the agreement is signed and the actual divorce. Is she able to go back on the agreement and attempt to make a claim for the increased property value?
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Ottawa,
In regards to your separation agreement, it is good to see that you and your spouse coming to terms, However, to make the agreement legal and binding and certain things have to be done. As listed:
PART IV
DOMESTIC CONTRACTS
FAMILY LAW ACT R.S.O. 1990 c.F.3
http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK60
Separation agreements
54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).
Form and capacity
Form of contract
55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).
Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
To prevent your agreement from becoming null and void, full financial disclosure has to occur between the parties.
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
Most people aren't lawyers, so it easy to say that one didn't understand the terms of the agreement at the time and in the face of having no legal advise on the matter. It is advisable that each party at least have an independent lawyer to advise and go over the terms of the agreement.
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