A separation agreement—a legal contract between separating spouses or partners—can help a separating couple unwind both their financial and their family-related matters.

Under Ontario’s Family Law Act, for a separation agreement to be valid, the partners must be living separate lives, even if within the same residence, and must have negotiated the agreement freely—without duress or undue psychological pressure exerted by either partner. While it is not mandatory in Ontario, ideally, both parties should have had the benefit of independent legal advice before signing the agreement.

In addition, to ensure validity of the separation agreement, the parties must be of legal age and must have “full mental capacity.” And, as with any contract, the agreement must be in writing, signed by both parties and properly witnessed.

Although it happens rarely, a court can strike down all or part of a freely negotiated agreement—even if the technical requirements have been met. This might happen, for example, if the agreement is not clear, if it failed to adequately anticipate future events or if it gives rise to an unfair outcome.

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