Separation and Separation Agreements (Script 115)

From Clicklaw Wikibooks

What is separation?

Married and unmarried couples have separated when one or both of them make the decision that their relationship cannot continue, and communicate that decision to the other person. People do not need to agree to separate; only one person needs to decide that the relationship is over for a couple to be separated.

Separation usually involves the end of the couple’s life together as a couple. Most people stop eating together, stop doing chores for each other, stop going out together and stop sleeping together.

Separation does not require that the couple move into separate homes. People sometimes stay living together under the same roof, although often in separate beds, because it’s cheaper to live together with one set of household bills than live apart with two sets of bills. If the couple stays living under the same roof, they will usually move into different bedrooms, stop sharing meals together and so on.

Separation doesn’t always mean that a relationship is over for good. Some people go to counselling and use their time apart to rebuild their relationship, with the hope of eventually reconciling and resuming life as a couple. For others, reconciliation is impossible and separation ends their relationship.

What is a “legal separation”?

There is no such thing as a legal separation in British Columbia. There are no papers to sign to separate and you don’t need to see a judge or a lawyer to separate.

Who is a spouse?

Under the federal Divorce Act, a “spouse” is someone who is or was married to someone else. Under the provincial Family Law Act, the term “spouse” includes:

  • people who are married to each other;
  • people who lived together in a marriage-like relationship for at least two years; and,
  • people who lives together in a marriage-like relationship for less than two years, if the couple has had a child together.

Do you have to think about divorce now?

Only married spouses need to divorce to end their legal relationship. However, if you’re married and have just separated, you don’t have to worry about divorce yet. Divorce is usually a fairly low priority. Most married spouses have more important things to think about, such as where the children will live, how the children’s time will be shared, whether support should be paid and how property and debt should be divided.

When can you get a divorce?

Married spouses may apply to court for a divorce order after they have been separated for one full year. Married spouses can live together to try to reconcile for up to 90 days without interrupting the one year period of separation; if the spouses live together for more than 90 days trying to reconcile, the one year period starts again on the date of their last separation.

Married spouses can apply for divorce sooner than one year if one of them has committed adultery, which hasn’t been forgiven by the other spouse, or if one of them has abused the other and it is not possible to continue the relationship. Most marriage spouses apply for a divorce because of their separation, not because of adultery or cruelty. The only thing you get for asking for a divorce on these grounds is a quicker divorce. If you are thinking of asking for a divorce because of adultery or cruelty, remember that you must be able to prove that the adultery or the cruelty happened.

For information on the grounds for divorce, refer to script 120 on “Requirements for Divorce and Annulment”.

What is a “separation agreement”?

A separation agreement is the written record of how a couple has settled of the issues arising from the end of their relationship.

For spouses, these issues usually include:

  • Whether a spouse is entitled to financial help meeting his or her expenses, and, if so, who should provide that help and in what amount. This is called spousal support.
  • For married spouses and unmarried spouses who have lived together for at least two years, how family property will be divided and how responsibility for family debts will be shared.

For parents, including spouses who are parents, these issues include:

  • Who the children should live with and how decisions about the care of the children will be made? Under the Divorce Act this is called custody; under the Family Law Act this is called parental responsibilities and parenting arrangements.
  • How the parents will share the children’s time. Under the Divorce Act this is called access; under the Family Law Act this is called parenting time and contact.
  • How the parents will cover the children’s financial needs. This is called child support.

If you can manage to settle these issues, you should consider making a separation agreement for two reasons. First, separation agreements are legal contracts recording the terms of your settlement that can be enforced by the court. Second, it’s much cheaper and often quicker to resolve these issues by an agreement than going to court.

The care of children

A couple might agree that the children will live mainly with one parent, and the other parent can have time with the children on specified days. Or, a couple may agree to share responsibility for looking after the children and have them live partly with each parent. There are many different types of parenting plans that can be agreed to in a separation agreement. You may want to get some advice first from a counsellor or lawyer.

Support

For more information about support, refer to script 117 on “Child Support” and script 123 on “Spousal Support”. The income tax rules about support payments are important too, so you should also refer to script 133 on “Income Tax Implications of Support Payments”.

The family home

A separation agreement can also say whether one spouse will get to keep the family home or whether it will be sold. Don’t forget that even if the house is in one spouse’s name, the other spouse is almost always entitled to some share in it. Some spouses think it’s best to let the parent who usually has the children stay in the house; for others, it may be best for the children to stay in the house while the parents move in an out when it’s their time with them. There are many choices, and a lawyer can help you decide what’s best.

Other property

When a couple separates, each spouse has a right to a share in the property that accumulated during the relationship as well as the increase in value of any property brought into the relationship. If you own other property in addition to your home (for example, a car, a cottage or investments), a separation agreement can cover how to divide these assets too. Refer to script 124 on “Dividing Property and Debts” for more on this topic.

Debts

When a couple separated, each spouse is usually responsible for one-half of the debt accumulated during the relationship. This can be covered in a separation agreement too. Until then, decisions must also be made about paying for the family bills. Does the spouse who gets the use of the house have to pay the mortgage? Who will pay for the credit cards and utilities? Refer to script 124 on “Dividing Property and Debts” for more on this topic.

Family businesses

If you run a business together you probably won’t want to be business partners any longer. It is important to resolve all of the financial issues relating to your business. These can also be dealt with in a separation agreement.

Are mediation or collaborative settlement processes a good idea?

Mediation can be very helpful if you and your partner want to make decisions in the most cooperative way possible and are having trouble negotiating with each other. A trained mediator can work with you to develop a parenting plan for the children and make other decisions. Your lawyer may or may not be with you at the mediation sessions, but if you see a mediator, it’s important that you consult a lawyer about your rights and responsibilities before signing any agreement.

A collaborative approach may also be used to settle things. In these processes, the couple and their lawyers agree to cooperate and work together to negotiate an agreement that resolves the issues arising from the separation. The couple and their lawyers will sign a collaborative participation agreement which says that no one will go to court or use threats of going to court. If the collaborative process breaks down, the spouses must hire new lawyers if they want to go to court.

For more information on this, refer to script 111 on “Mediation and Collaborative Settlement Processes”.

A lawyer should prepare your separation agreement

Separation agreements can have a serious and long-lasting impact on your legal rights and obligations. As a result, it’s always a good idea to have a lawyer prepare your separation agreement. Both people can’t use the same lawyer, and each you should each get your own lawyers to learn about your rights and obligations and about what your agreement means.

What does a separation agreement cost?

The cost of a separation agreement depends on the lawyers you pick and how complicated your situation is. Ask your lawyer at the beginning for an idea of what it will cost. To save time and money, take as much information with you as you can when you see your lawyer. Take things like:

  • Income tax returns
  • Paystubs for you and your partner
  • Documents about the house and mortgage
  • Papers about other assets such as RRSPs, investment accounts and savings accounts
  • Documents relating to any debts such as credit cards and lines of credit

Also, think about what your financial needs are and consider preparing a list of your monthly expenses before you go. This way your lawyer can give you informed advice about financial matters.

How long does a separation agreement last?

Most separation agreements last until one or both people die; most are meant to be permanent. Agreements that end sooner will say so.

What happens if one spouse dies during negotiations?

The death of one person before the couple have signed a separation agreement or the court has made a final order can have a serious impact on how property and debts are shared. This can get complicated, so you should obtain legal advice from a lawyer about how best to protect yourself if there is a chance your partner may die before things are resolved.

Summary

You don’t need a separation agreement to separate, and you don’t need to see a lawyer or a judge to separate. You and your partner don’t even need to agree to separate.

If you have separated, and if you have children or property or need financial support, it’s best to have a formal written agreement if you can reach a settlement on these issues and want to avoid going to court. If you can negotiate a settlement, you should have a lawyer prepare the written agreement and you should each have your own lawyer to give you advice about the meaning and legal effect of the agreement.

More information


[updated October 2014]

The above was last reviewed for accuracy by JP Boyd.


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