Your separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.
For example, the rules say before you sign your agreement, you must understand it, the process is fair, and that you and your partner give complete and honest information about your finances.
As long as these rules are followed, the law allows common-law partners to agree on how to deal with their property. This means you can agree:
- if one partner owes the other partner for an "unjust enrichment" or trust claim
- if one partner is going to pay the other partner an equalization payment to share in the value of their property as if they were married
- if property is going to be divided another way
- if property is not going to be divided at all
Financial disclosure, which means sharing financial information with each other honestly and completely, is very important to an agreement that deals with property.
If one partner failed to tell the other partner about significant assets or debts they had when an agreement was made, the court may set aside all or part of that agreement. This means the court allows you not to follow all or part of the agreement.
You can give financial information in many ways. For example, you could use a computer spreadsheet or a handwritten document that lists all your financial information.
Or, you can fill out one of the financial statement court forms. Many people use these forms even if they don't go to court because they show you what the court looks at when deciding property issues.
If you or your partner wants the court to divide your property, you must use Form 13.1: Financial Statement (Property and Support Claims). In this form you must list all of your assets and all of your debts.
You and your partner should also give each other documents that support the assets and debts you have listed. For example, copies of bank statements that show how much money you say is in your bank account.
Don't sign a separation agreement until you're sure you have all the information you need. Make sure that you understand what is written and that you agree to it.
The courts encourage people to decide their issues on their own. So if you have an agreement, the courts won’t set aside your agreement easily.
So for example, the court won't set aside an agreement just because one of you has changed your mind and now thinks your agreement isn't fair.
But if you and your partner didn't follow the rules, for example, if your partner didn't share important financial information, when making your agreement, the court may set aside your agreement.