A separation agreement is a document that provides a road map for resolving the key issues, such as property, support and your children, in your divorce without going to court. When done right, it’s a legitimate agreement to give both parties peace of mind and some definite direction.
If done poorly, it can come undone years later. If it is not properly worded, it may be invalidated, if the disclosure is missing, or if the signature is hurried. Our family lawyers in Surrey BC can assist you in reaching and developing a separation agreement that is fair, comprehensive and enforceable under the Family Law Act in BC.
What is a Separation Agreement?
A separation agreement is a written agreement that is made between two people who are separating in a marriage or common-law relationship. It summarises the ways you and your former partner are going to deal with the practical and financial issues that would arise if you were to separate, in one document.
It is not necessary to be divorced for it to be effective or to be in court. In fact, for most couples, a separation agreement is the basis that will solve all problems without going to court.
A well-drafted agreement can cover:
- All property and debts: family home, vehicles, savings, pensions, and shared debts should be divided.
- Spousal support: Whether it is paid, how much, and duration of payments.
- Child Support: Assessed in accordance with Federal Child Support Guidelines.
- Parenting Arrangements: This includes guardianship, parenting time and decision-making.
- Companion animals include other terms, such as who keeps a companion animal or what happens if you reconcile.
When Are You Separated in BC?
In British Columbia, there is no official process for legal separation. There is no permission, document or court order required to separate from your partner as soon as one person decides that the relationship has ended.
The couple can even live apart even though they live in the same house, quite often for the sake of the children, provided they don’t act like a couple any longer. The date of your separation is important because property and debt that accrued prior to this date can be split between you. One of the first services we provide our clients is to clearly define it. For anyone who is considering their options for making the move after separating, check out our blog on staying in your home after separation in BC.
What Makes a Separation Agreement Legally Binding?
Under the Family Law Act, agreements are generally treated much like court orders — but only when they’re made correctly. To be valid and enforceable, a separation agreement should be:
- In writing: Verbal understandings are extremely hard to prove and enforce
- Signed by both parties: Each person must sign the agreement.
- Properly witnessed: Each signature must be witnessed by another person; the witness must be an adult but does not need to be a lawyer or notary.
- Based on full financial disclosure: Both people must honestly disclose their income, assets, and debts.
- Entered into freely: Without pressure, threats, or undue influence.
Why Full Disclosure Matters So Much?
When it comes to a separation agreement, there’s one thing that will kill it: hidden information. If a spouse withholds income, assets or liabilities from negotiations, a court has the ability to overturn the arrangement, even years after it has been signed. If under the Family Law Act there is an agreement, a court may cancel all or part of that agreement if:
- One spouse did not share assets or liabilities
- One spouse used the other’s weakness, or lack of awareness
It is extremely unfair in terms of the agreement to be judged in the circumstances. When it comes to terms relating to children, it is held to an even higher standard: child support and parenting arrangements are put in place to be in the best interests of the child, and no private arrangement trumps that. Protecting you at the end is getting disclosure right at the beginning.
Filing Your Agreement with the Court
Once a separation agreement is signed and witnessed, it goes into effect; it does not need to be filed anywhere. However, filing can offer an extra level of protection.
An agreement (written) addressing parenting time, contact with the child, child support or spousal support can be submitted in the court registry for terms to be enforced as if a court order. They can also be registered with the BC Family Maintenance Agency to help enforce support. Divorce proceedings can also be quicker and easier if you have a signed agreement in place if you later file for divorce.
Can a Separation Agreement Be Changed?
Yes. If both parties agree, you can modify or cancel the agreement anytime, as happens when incomes grow or fall, a parent moves or a child’s needs change. Certainly, parenting and support terms will need to be reviewed if things change radically. Property division, on the other hand, typically aims to be a final division. If any changes are needed in the future, it will be much easier to handle with proper drafting in the beginning.
Why Not Just Use a Template?
Tempting, but risky, free templates and online forms are available. A general agreement is unlikely to accurately reflect your financial situation, leave out the necessary clauses and may not comply with the provisions of the Family Law Act, and ultimately may be invalid when you need it. Even worse, if they get it wrong in the drafting phase, it can be much more costly to correct the mistake later on. One of the most important contracts you’ll sign is a separation agreement. It is important to get it right.
A separation agreement is one of the most important contracts you’ll ever sign. It’s worth getting right.
How CityLaw Can Help?
No matter whether you are going through an amicable or not, our family law team will help you navigate the process of a separation agreement. We ensure that your separation agreement includes what’s important to you if you’re married or common-law. Book a Free Consultation or call +1 604-808-4444.
