Many couples prefer to settle the financial consequences of separation themselves, in a written separation agreement, rather than leaving those questions to a judge. The law strongly encourages this — final settlements give people certainty and let them move on. But a private agreement is not always the last word. A court retains the ability to review a spousal-support agreement in defined circumstances, and the leading authority on when it will do so is Miglin.
Miglin v. Miglin (2003)
In Miglin, the Supreme Court set out a two-stage test for deciding how much weight to give an agreement dealing with spousal support. The framework tries to respect the parties' choice to settle while still guarding against agreements that were unfairly made or that have become unworkable.
Stage one: how the agreement was made
The court first examines the circumstances surrounding the negotiation and formation of the agreement. Was there oppression, pressure, or a serious imbalance the stronger party exploited? Did both people understand what they were signing? It then asks whether the substance of the agreement substantially complied with the objectives of the Divorce Act at the time it was made. An agreement negotiated fairly, with each person properly informed, is entitled to significant respect.
Stage two: how things stand now
Even a fairly made agreement can be revisited if life has changed dramatically. At the second stage, the court asks whether, at the time of the application, the agreement still reflects the parties' original intentions and continues to be in substantial compliance with the Act's objectives, given any change in circumstances. The bar is high — ordinary, foreseeable changes are not enough. The change must be significant and not reasonably anticipated when the deal was struck.
What makes an agreement hold up
Three things repeatedly make the difference between an agreement that survives a challenge and one that does not:
- Independent legal advice for each person, so neither can later claim they did not understand the deal.
- Full and honest financial disclosure before signing, since a settlement built on hidden assets or income is fragile.
- The absence of pressure — no signing under duress, on the courthouse steps, or without time to think.
Get those right and the agreement is much harder to unwind later. Skip them and a court has far more room to intervene.
For education only. Whether an agreement holds up depends on how it was made and what has changed since, and outcomes turn on the specific facts.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.