If you're considering separation, or have recently gone through one, you might be thinking about learning more about separation agreements.

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Separation agreements are a great way to make sure everyone knows their rights and responsibilities for issues including property division, child support, parenting time, and spousal support. Assuming you and your ex-spouse are both on-board, separation agreements allow you to have more control on how you want to navigate these types of issues.

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Separation agreements are also a great way to settle matters outside of court and litigation. Going to court generally means more financial and emotional stress as compared to separation agreement.

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This article will take a closer look at some of the most common questions that come up about separation agreements, such as: what is a separation agreement, what issues can it deal with, and why you should consider making one.

What does separation mean?

Separation occurs when two spouses end their marriage-like relationship. The term spouse refers to a person who is married to or has lived with their partner in a marriage-like relationship. To constitute a marriage-like relationship, partners must have either lived together for at least two years, or less than two years if they have a child with the other person.

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Separation marks the end of the spousal relationship and occurs when one or both people decide to dissolve the relationship, share their decision with the other person, and stop acting as if the spousal relationship still exists.

What is a separation agreement?

A separation agreement is a legal contract between two individuals that spells out how they have decided to resolve property division, support, and parenting issues related to their separation.

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A separation agreement needs to be signed by both parties, and it should be signed in front of one or two witnesses. The witness does not have to be a lawyer. Once the document is signed, it becomes a legally binding contract between the parties.

Why make a separation agreement?

Making a separation agreement encourages couples to settle their issues outside of court. It's usually quicker and cheaper to resolve family law issues by way of separation agreements rather than going to court.

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In addition, separation agreements are legally enforceable. This means that the parties to the agreement cannot breach its terms and get away with it. If one party doesn't follow the terms of the agreement, then the other party can go to court and ask for remedies, including enforcement of the terms.

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The final advantage is that everyone knows what they're getting into and what their rights are under the agreement when they sign it. So, there's less confusion about what happens next after a couple separates. This can make their life post-separation much smoother than if they rely on informal arrangements instead.

What can separation agreements deal with?

A separation agreement can deal with almost anything related to the parties' relationship, including:

Parenting Arrangements

The agreement can set out the details about parenting time and allocate decision-making responsibilities about the children. The parties can lay out how much time each parent will spend with the children, including over the school year and holidays. They can also decide who will make important decisions about their children's lives, like where they go to school and what medical treatments they receive.

Child Support

The agreement can set out the child support payable by one parent to another. Child support is taken very seriously by our courts; it is viewed as a right of the child and not a negotiable term of an agreement. The amount of child support depends on the payor parent's income. If both parents have shared parenting time, meaning that each has care of the children at least 40% of the time, then the child support payable depends on both parents' income.

Spousal Support

The agreement can set out whether spousal support is payable and if it is, then it can set out the amount, duration, and circumstances under which this support will continue or end. Spousal support is not automatic and it is something that can be negotiated. If one spouse is financially dependent on the other or can't become self-sufficient (such as due to illness), they may be entitled to spousal support.

Division of Family Assets & Property

The agreement can set out how assets and property will be divided. The BC Family Law Act sets out which assets are considered family property and how they should be divided. Generally, all assets, whether in joint or sole names of the parties are divided equally. There are exceptions though, called excluded property. The Act addresses how to handle excluded property—assets that are not considered family property. It's important to keep in mind that, under the Act, the increase in value of excluded property during the relationship is divisible between the spouses.

Division of Family Debt

The agreement can set out how debt will be divided. In most cases, each spouse will be responsible for half of any debt incurred during a relationship. They may also be liable for an equal share of debt accrued post-separation, such as debt incurred to the maintain family property.

Life Insurance Policies

The agreement can set out how life insurance policies will be divided, who will cover the premiums, and whether any of the proceeds will be payable to a third party.

Tax Planning Costs

The agreement can set out who will pay the costs of tax planning, estate planning, retirement planning, and income tax preparation.

The Family Home

The agreement can set out how the family home will be divided, who will live in it, and how much each spouse will pay for their share of the mortgage. If one spouse wants to sell their portion, the agreement can specify who has the first right to buy and at what price.

Pet Ownership

The agreement can determine which spouse will keep the family pets, and whether or not the animals are to be divided. The agreement can also include a clause detailing who will pay for any additional costs associated with taking care of the pet.

A separation agreement may also describe what will happen if the parties reconcile. It is not unusual for a Separation agreement to state that it will become a marriage agreement or cohabitation agreement in the event of reconciliation and that it will remain legally binding even if they get back together.

What do I need to make a separation agreement?

While people in BC can draft their own separation agreement without the help of a lawyer, it is highly recommended that people hire a family law lawyer to review their separation agreement before signing. A family lawyer can help ensure that all the legal requirements have been met and that nothing has been forgotten. This will ensure your rights are protected and you are well represented in court if necessary.

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Spouses should each contract a separate family lawyer in order to receive independent legal advice and representation. This will ensure each party's legal rights and interests are fully represented in the agreement.

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In addition, each party should make a full financial disclosure prior to drafting an agreement. Both parties must be completely open with their assets, liabilities, and incomes. Full financial disclosure includes giving information about RRSPs, pensions, insurance policies, investments, bank accounts, stocks, companies, and debts owed (such as mortgages, lines of credit, credit cards, and personal loans).

Do I need a separation agreement if I'm going through a divorce?

To get a divorce order, you have to start a court action and get the order through the courts.

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A separation agreement is not required to get the divorce order unless children are involved and if there is no court order in place regarding the children's care and support. If children are involved, the court has a duty to ensure that reasonable financial arrangements have been made for their care and support. So, the agreement can set out the terms about care and support.

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Basically, a couple can speed up their divorce by having a separation agreement in place. The added bonus is that by negotiating a separation agreement, you generally pay less in legal fees, you resolve the issues quicker than going to court, and the process is less stressful for both parties.

What if my spouse refuses to work on a separation agreement?

If your spouse refuses to cooperate with the separation agreement process, you have several options. While you can't force someone to sign an agreement, a lawyer may be able to negotiate an agreement on your behalf. Alternatively, you can suggest ways to work out an agreement without litigation. For example:

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Mediation is a common option for separating couples. Mediators are neutral third parties who help you and your spouse reach an agreement outside of court.

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Collaborative negotiation is another option. In this case, you each have your own lawyer and agree that it is in everyone's best interest to resolve the matter without going to court.

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Arbitration is yet another option. An arbitrator is a neutral third party who makes a decision about the issue(s). This can be helpful if you and your spouse are unable to come to an agreement on your own and want to avoid court.

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If all else fails, you can take your case to court. This is generally the most expensive option. It can also be time-consuming and stressful for everyone involved. If you decide to go this route, be prepared for a long battle.

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