As Part 1 of this series explained, courts generally respect the arrangements negotiated by parties in separation agreements, but can “set aside” (cancel) a separation agreement for several different reasons. Part 1 discussed two common grounds, (i) misunderstanding of the nature or consequences of the agreement, and (ii) duress, undue influence, fraud, misrepresentation, or public policy reasons. This Part 2 covers another common ground, failure to meet the financial disclosure requirements of the Family Law Act. Financial disclosure is the key obligation in family law. One of the most common reasons separation agreements are set aside (canceled) is for lack of financial disclosure or inadequate financial disclosure. Under the Family Law Act, parties cannot waive financial disclosure before entering into a separation agreement. Under the Family Law Act, the court can set aside a separation agreement if a party failed to disclose to the other significant assets, or significant debts … Read More
How to Set Aside (Cancel) a Separation Agreement: Part 1
Courts generally respect the arrangements negotiated by parties in separation agreements. However, under the Family Law Act, there are several grounds on which a court can “set aside” (cancel) a separation agreement. A party seeking to set aside a separation agreement must show the court their matter falls within one of these grounds and then convince the court to exercise its discretion in their favor and set aside the agreement. A recent case illustrates two of the most common grounds to set aside a separation agreement: (i) if a party did not understand the nature or consequences of the domestic contract; and (ii) where there is duress, undue influence, fraud, misrepresentation, or for public policy reasons. Radosevich v Harvey involved an appeal of a lower court decision. The appellant, Ms. Radosevich, had sued her former family law lawyer, Ms. Harvey, for being negligent in the negotiation of her separation agreement. … Read More