In family law, when parties enter into a separation agreement to deal with the issues in their matter, one or more parties may afterwards wish to set aside the terms of the agreement that they entered into or set aside the entire agreement itself. For instance, the access terms as mentioned in the agreement may no longer be applicable or may no longer serve the best interests of the children.
In such circumstances, the parties may wish to set aside the separation agreement through mutual consent or a court order. Courts have expressed their opinion on setting aside separation agreements on a number of occasions. Generally, courts are inclined to set aside a separation agreement if the following factors are in play:
1) lack of full disclosure, financial or otherwise, made at the time when the parties entered into the agreement;
2) low level of understandability of the parties when the agreement was entered into;
3) whether the agreement is unconscionable ;
4) presence of abuse or intimidation;
5) whether a lawyer was retained by each party;
6) whether the parties engaged in negotiations; and,
7) if the contract was more advantageous for one side than the other;
The fact that parties entered into an agreement does not preclude the parties from attending court to amend any unreasonable or unconscionable terms of their separation agreement.