Anderson Case - A Cautionary Tale for DIY Agreements
Anderson v. Anderson: A Cautionary Tale for DIY Separation Agreements
The rise of do-it-yourself legal documents has made it easier for separating couples to draft their own separation agreements. While this may seem like a cost-effective solution, the Supreme Court case of Anderson v. Anderson (2023) serves as a powerful reminder of why careful consideration is crucial when reading and signing these important documents.
The Case That Changed Everything
When James and Diana Anderson decided to separate after 3 years of marriage, they thought their situation was simple and they could save money by drafting their own separation agreement. Ms. Anderson prepared an agreement that stated each one of them would keep their own property and give their rights to share in each other’s property, except the family home which was jointly owned. Both parties signed the agreement without lawyers and two friends witnessed their signatures. Neither party had the agreement reviewed by lawyers. Mr. Anderson later challenged the agreement because it was signed under duress and without lawyers.
What Did the Court Say?
The Supreme Court found the agreement was enforceable and dismissed Mr. Anderson’s attempt to set it aside.
What Does the Court Say About DIY Agreements?
Mr. Anderson could not point to any evidence of prejudice from his lack of independent legal advice. The Court confirmed that domestic contracts should be encouraged and supported by the Courts, absent a compelling reason to discount them. This flows from the recognition that self-sufficiency, autonomy and finality are important objects in the family law context.
Key Lessons for DIY Drafters
If you're considering drafting your own separation agreement, here are some tips to ensure you have created a strong legal agreement:
1. Financial Disclosure is Non-Negotiable
Complete and accurate financial disclosure isn't just a formality—it's a fundamental requirement for a valid separation agreement. Both parties must provide comprehensive lists of all assets, liabilities, and income sources and the values must be .
2. Independent Legal Advice Matters
Having each party receive independent legal advice helps ensure the agreement is fair and that both parties understand their rights and obligations. This becomes crucial if the agreement is ever challenged.
3. Province Specific Requirements Are Critical
Each province has specific requirements for separation agreements. Generic online templates may not address these requirements adequately.
4. Future Modifications Need Consideration
A well-drafted agreement should include provisions for future modifications, especially regarding child-related matters and circumstances neither party could have anticipated.
Protecting Your DIY Agreement
If you decide to proceed with a template separation agreement, consider these protective measures:
1. Have both parties complete sworn financial statements with a detailed schedule of assets and debts
2. Include clear language about the consequences of failing to disclose assets
3. Have the agreement reviewed by separate lawyers before signing
5. Use clear, specific language and define important terms
6. Include provisions for future modifications
7. Ensure compliance with province-specific requirements
Conclusion
If you choose to draft your own separation agreement, treat it as a serious legal document deserving careful consideration and attention to detail. Seeking professional legal advice can save significant time, money, and stress in the long run. Remember: a separation agreement isn't just a formality—it's a binding legal document that can affect your rights and obligations for years to come.
