The Family Law Act defines a domestic contract as a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement. While each have their own particular qualities, it is important that you are aware of the all legal rights and obligations associated with the domestic contract you are entering into, as these are legally enforceable documents.
However, there are specific situations where a party to an executed domestic contract may seek to set it aside. Pursuant to the section 56(4) of the Family Law Act, a court may, on application, set aside a domestic contract or a provision in it if one of the following occurred: 1) if a party failed to disclose to the other significant assets or significant debts or other liabilities existing when the domestic contract was made; 2) if a party did not understand the nature or consequences of the domestic contract; or 3) otherwise in accordance with the law of contract.
Failure to Disclose
The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets, and the failure to disclose changes in income. The significance of an asset is assessed by measuring the value of the asset against a party’s disclosed net assets. To conclude that a party has failed to disclose a significant asset, there must be some evidence to verify the value or extent of the party’s assets either at the date of marriage or the date of the agreement.
Understanding the nature and consequences of the domestic contract
While the lack of Independent Legal Advice (ILA) may indicate a absence of informed consent by one or both of the parties, this is not strictly fatal to the domestic contract, and this determination is assessed on a case-by-case basis.
Law of contract
Some of these common law grounds for setting aside include duress, undue influence, misrepresentation, mistake, and non est factum.
Having an experienced lawyer assist you with drafting a legally sound domestic contract is important to providing security, stability, and peace of mind in order to move forward independently after your family law matter has been resolved.
The experienced Family Law Team at Boardwalk Law LLP is happy to help with your separation/divorce or family law issues. Please contact Brandon Machado, Associate Lawyer at Boardwalk Law at [email protected] / 905.798.5509 to book a consultation today.
