Separation and Separation Agreements

What is separation?

Married and unmarried spouses 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 and communicate that decision to the other person 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 while they are figuring out how they will resolve matters with respect to their property, children and any potential support claims.

Separation does not 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. Couples can separate anytime. What is important is taking note of your date of separation as it will affect your rights to division of property, debt and support. Unless a Cohabitation Agreement or Marriage Agreement says otherwise, the date of separation is generally the day on which one person communicates to the other that they want to end their relationship, or the couple makes the decision together to end their relationship.

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 lived together in a marriage-like relationship for less than two years, but have a child together. (Note: this category of spouses do not have rights to division of property, debt and pension).

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 generally will not be granted until all other issues have been resolved, including parenting arrangements, child and spousal support and the division of property and debt.

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 also apply for divorce sooner than one year if one of them has committed adultery, which has not been accepted or approved by the other spouse, or if one of them has been physically or mentally cruel to that living together is no longer not possible. Most married spouses apply for a divorce after the one year separation, not because of adultery or cruelty. This is because it is difficult to prove adultery or cruelty. The responsibility of proving the adultery or cruelty is on the spouse making the allegation. The only thing you get for asking for a divorce on the basis of adultery or cruelty is a quicker divorce.

A married spouse will need to obtain a divorce should they wish to remarry in the future. Note, a divorce order starts the clock on the 2 year limitation period within which a spouse may start a court action against the other for the division of property, debt, pension and spousal support.

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 and signed record of how a couple has settled the issues arising from the end of their relationship.

For married and unmarried 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.
• How family property will be divided and how responsibility for family debts will be shared. The Family Law Act provides guidelines on what assets are considered family property and what debts are considered family debt, as well as what assets are excluded from family property and division. This can be complicated, and you may wish to get the assistance of a lawyer if you have considerable assets that need to be dealt with.

For parents, including married and unmarried spouses, there could be additional issues including:

• Whom 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 parenting arrangements, which includes guardianship, parental responsibilities and parenting time.
• 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 agreement and it 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 and avoid confusion by making a record of it in a separation agreement signed by both spouses.

Do I need a separation agreement to get divorced?

You do not need a separation agreement to get divorced; however, the Court will want to see evidence that the issues of parenting, support and property division have been addressed before they will consider your request for a divorce. As such, it is helpful to have a separation agreement or court order setting out the arrangements that have been agreed to. If there is no property or debt to divide, no children for which parenting and support has to be addressed, and no claim by either party for spousal support, then a separation agreement may not be necessary. Before deciding whether you need a separation agreement or whether you should sign one, it is important get independent legal advice from a family law lawyer so you can make an informed decision.

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 and time. 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 or a court order. You may want to get some guidance first from a counsellor or a parenting coach to determine what is best for your child(ren), and legal advice from a 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 what happens with the family home, including whether one spouse will get to keep the family home or whether it will be sold or some other arrangement. 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 so that the children could continue to live in the family home until they complete high school; 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; this is called nesting. 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 separates, 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 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 may not 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, and should be done with the guidance of a lawyer to ensure that this is done appropriately.

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 family law 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. If you do not have a lawyer giving you legal advice during the mediation, it’s important that you consult a lawyer about your rights and responsibilities before signing any agreement.

A collaborative process 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 of you should get your own lawyers to learn about your rights and obligations and about what your agreement means before signing. To save on legal fees, spouses could share the cost of preparing a separation agreement and one of the spouses’ lawyers could prepare the agreement while the other could provide independent legal advice to the other spouse

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 pensions, RRSPs, investment accounts and savings accounts
• Documents relating to any debts such as credit cards and lines of credit
• Documents relating to any assets or debts you or your spouse brought into the relationship

Also, think about what your financial needs are and consider preparing a list of your monthly expenses before you see a lawyer. 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. However, agreements about children and support may be changed if there is a material change in circumstances.

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 divided. 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.

What happens if one spouse refuses to work on a separation agreement?

It is not possible to force a party to participate in negotiating a separation agreement if they are not interested in doing so. If you are wanting to resolve things and the other side is refusing to work on a separation agreement with you directly, you have a few options. Firstly, you can get lawyers involved to assist in negotiating matters. Secondly, you could suggest participating in mediation (either with or without lawyers) which will give you a setting to work out the terms of a separation agreement with the help of a neutral mediator, or through the Collaborative Process, which uses lawyers, and if needed, other professionals like divorce coaches, child specialists and financial specialists to assist in resolving any issues. Thirdly, you could suggest participating in mediation followed by arbitration. This process uses the benefits of mediation, but if there are any issues that cannot be resolved through mediation, those issues are then decided on by a specially trained arbitrator. Spouses may also agree to hire an arbitrator to make binding decisions about their issues without first going through mediation. Lastly, you can take the matter to Court to resolution.

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. This will strengthen the terms of what is contained in the agreement and make it harder for the other person to try to change it in future if they change their mind about how things are settled.

More information

• The laws referred in this script are available at www.bclaws.ca or http://laws-lois.justice.gc.ca.
• You can find more information about separation, separation agreements, caring for children after separation, child support and spousal support, and the sharing of property and debt the from wikibook JP Boyd on Family Law, published by Courthouse Libraries BC.

[updated April 2017]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye and Zahra H. Jimale.

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