Separation and Separation Agreements

What is separation?

Married and unmarried spouses have separated when one or both of them decide that their relationship cannot continue, and inform the other person of their decision. 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. But it’s important to note the date you separate because 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 when one person informs the other that they want to end their relationship, or the couple jointly decide 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 BC Family Law Act, spouse includes people who:

• are married to each other;
• lived together in a marriage-like relationship for at least two years; and,
• lived together in a marriage-like relationship for less than two years but have a child together. These 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. But 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 so that living together is no longer possible. Most married spouses apply for a divorce after the one-year separation, not because of adultery or cruelty, because it’s hard to prove adultery or cruelty. The person alleging adultery or cruelty must prove it. The only thing you get for asking for a divorce because of adultery or cruelty is a quicker divorce. There are no other benefits to this route.

A married spouse will need to get a divorce if they ever want to remarry.

A divorce order starts the 2-year limitation period running. Within that 2 years, a spouse can sue the other for the division of property, debt, pension and spousal support.

For information on grounds for divorce, check 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—you should get help from a lawyer if you have a lot of assets.

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 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 they 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. You avoid confusion by recording your agreement in writing and having both spouses sign it.

Do you need a separation agreement to get divorced?

You do not need a separation agreement to get divorced, but the Court will want to see evidence that the parenting, support, and property division have been dealt with before they will consider your request for a divorce. So it helps 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 who need parenting and support, 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 to sign one, get independent legal advice from a family law lawyer.

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 certain times and 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 or a court order. You may want to get some guidance first from a counsellor or a parenting coach to decide what is best for your children. You may also want to get legal advice from a family-law lawyer.

Support

For more information about support, check 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 check 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 it, whether it will be sold, or whether some other arrangement will be made. 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 finish high school. Others think 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, including both people staying in the home until a date they agree on or until one of them wants to sell it. 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. This is called family property under section 84 of the Family Law Act. If you own other property besides your home (for example, a car, a cottage or investments), a separation agreement can cover how to divide these assets too. Check 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 is called Family Debt under section 86 of the Family Law Act. Each spouse may also be responsible for one-half of debt incurred after separation, if it was used to maintain Family Property. If one spouse does not have the credit to take on their one-half of the debt, they have to make other arrangements. For example, the other spouse could take on more debt and get more of the Family Property in exchange. Or other family members could co-sign a loan. The division of debt can be covered in a separation agreement too. Until then, decisions must be made about paying 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? Script 124 on “Dividing Property and Debts” has 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. How to do this depends on whether the business is incorporated. These business issues can also be dealt with in a separation agreement. That should be done with a lawyer’s help to ensure that this is done properly.

Are mediation or collaborative settlement processes helpful?

Mediation can help if you and your partner want to make decisions in the most cooperative way but 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 spouse before the couple have signed a separation agreement or the court has made a final order can seriously affect how property and debts are divided. It can get complicated, so you should get legal advice about how best to protect yourself if your partner may die before things are resolved or if your partner died after separation but before you finalized the separation.

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

You can’t force someone to sign a separation agreement. If you are wanting to resolve things but the other doesn’t, you have a few options. First, you can get a lawyer.

Second, you can suggest mediation (either with or without lawyers) 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.

Third, you can suggest mediation followed by arbitration to solve any remaining issues. Or you can try arbitration without first using mediation. Lastly, you can go to court.

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 negotiate a settlement, you should have a lawyer prepare the written agreement and you should each have your own lawyer explain the meaning and legal effect of the agreement. This will strengthen the agreement and make it harder for the other person to try to change it in future if they change their mind about it.

More information

• The other Dial-A-Law scripts in this family law series
• JP Boyd on Family Law

[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.

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