One of the basic compondentsof a Separation Agreement that will withstand a later attack is having made full financial disclosure of ones’ income, assets and debts as of the time of the agreement.
It is foolish to hide assets or income from ones’ soon to be former spouse in the hopes that they will be tricked into accepting less than that which they are entitled to.
It is one of the basic precepts of fairness and a statutory condition contained within the Family Law Act.
There are many ways of satisfying that disclosure, however the more extensive the disclosure, the greater the likelihood of making the agreement bulletproof.
Some lawyers regularly insist upon sworn financial statements being exchanged. For persons of more modest means, our office will often attach a schedule detailing those assets, debts and liabilities right into the very agreement.
Often a dissatisfied spouse will attempt at a later date to set aside an agreement on the basis that there had not been such disclosure. This often starts a fishing expedition in not only finding investigating the assets and debts at the time of separation, but even as of the date of the attack.
The attacking party should understand that their own lawyer’s file as of the date of separation is fair game to be opened up and reviewed.
If your own lawyer warned you either that the agreement you were about to sign was unfair and/or that the disclosure provided was insufficient, then this can be fatal to such an attack. As the Court of Appeal stated in Butty, a 2009 decision, one cannot sign an agreement in the face of clearly insufficient disclosure, which you are well aware before you sign the agreement yet chose to sign it nonetheless.
By analogy, the same applies with respect to strong warnings from your own lawyer that an agreement is against ones’ own best interest.