What is the test for respecting a separation agreement where the parties have negotiated their own agreement as to how their financial affairs should be settled after the breakdown of their marriage?
British Columbia, Canada
The following excerpt is from Wagner v. Wagner Estate, 1991 CanLII 5739 (BC CA):
I am of the view, as was the trial judge here, that this passage from p. 850 [S.C.R.] of the judgment of Madam Justice Wilson for the court in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801, 14 B.C.L.R. (2d) 145, [1987] 4 W.W.R. 481, 17 C.P.C. (2d) 1, 7 R.F.L. (3d) 225, 76 N.R. 81, 38 D.L.R. (4th) 641, is particularly germane to the circumstances before us: It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration.
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