Separation and Separation Agreements
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation in October 2018.|
The end of a relationship is very difficult. There are many issues to work through and decisions to make. But this practical step can help: preparing an agreement about the family law issues you and your spouse agree on. Learn about separation agreements.
“My spouse and I just finished making our separation agreement. We didn’t agree on everything so it took us a while to put it together. We got help from a family justice counsellor to work out parenting arrangements and support. After we signed off on the agreement, we filed it in Family Court because there aren’t any filing fees. And it will be enforceable like a court order. I’m glad we did this! Now we both understand what our rights and obligations are.”
– Hannah, Pemberton, BC
- 1 What you should know
- 1.1 When you are separated
- 1.2 There is no “legal separation” in BC
- 1.3 Why make a separation agreement
- 1.4 A separation agreement can deal with support and parenting arrangements
- 1.5 A separation agreement can deal with property and debt
- 1.6 What happens to the family home
- 2 Common questions
- 2.1 Do I need a separation agreement to get divorced?
- 2.2 What happens if one spouse won’t work on a separation agreement?
- 2.3 Are mediation or collaborative practices helpful?
- 2.4 What happens if one spouse dies during negotiations?
- 2.5 What if we run a family business together?
- 2.6 Should we hire a lawyer to write our separation agreement?
- 2.7 What does a separation agreement cost if a lawyer prepares it?
- 2.8 Should we file our separation agreement in court?
- 2.9 How long does a separation agreement last?
- 2.10 I’m married but separated. Do I have to apply for a divorce?
- 3 Who can help
What you should know
When you are separated
Under the law in BC, a spouse is someone who:
- is married, or
- has lived together with another person in a “marriage-like relationship”
- * for at least two years, or
- * for less than two years and has a child with the other person.
Spouses are separated when one or both people:
- decide their relationship is over,
- tell the other person their decision, and
- act like the relationship is over.
Spouses don’t need to agree to separate.
Separation usually marks the end of a couple’s relationship. Most separating couples stop eating and sleeping together. They also stop doing chores for each other and going out together.
Separation doesn’t always mean a relationship is over for good. Some people go to counselling to try to rebuild their relationship. Married spouses can try to reconcile (get back together) by living together for up to 90 days during the one-year period of separation. If they live together for more than 90 days, the clock resets and a new one-year separation period begins (if they separate again).
Some people hope to reconcile and be a couple again. But for others, reconciliation doesn’t work. Their relationship ends when they separate.
Separated but living in the same home
After separating, couples live apart. But, they don’t have to move into separate homes. Sometimes people stay together under the same roof but have separate bedrooms. It’s less expensive to live in the same home while they figure out how to deal with their property, children, and any potential support claims.
You can be considered separated even if you and your spouse still live in the same home after your relationship ends. On Legal Aid BC’s Family Law in BC website, learn more about proving you're separated if you and your spouse still live together.
There is no “legal separation” in BC
There’s no such thing as a “legal separation” in British Columbia. You don’t have to sign any papers or see a judge or a lawyer to separate. Couples can just … split up.
That said, it’s important to keep track of the date you separate. It’ll 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 that:
- one person tells the other they want to end their relationship, or
- a couple jointly decides to end their relationship.
Why make a separation agreement
A separation agreement is a written and signed document. It records how a couple has agreed to settle their family law issues.
You should consider making a separation agreement for these reasons:
- It’s a legal contract recording the terms of your agreement.
- It can be enforced by the court.
- It’s a lot cheaper and often quicker to resolve family law issues by an agreement than by going to court.
- It helps avoid confusion over what to do about family law issues after separation.
A separation agreement can deal with support and parenting arrangements
For married and unmarried spouses, a separation agreement can include many different family law issues, including whether a spouse should receive financial help — and, if so, who should get it and how much. This is called spousal support.
For parents, there may be additional family law issues in a separation agreement, including:
- How the parents will cover the children’s financial needs. This is called child support.
- How the parents will care for and share time with the children. This is called parenting arrangements and includes parenting time and contact.
- Who the children should live with and how child care decisions will be made.
A couple might agree that their children will live mainly with one parent. (The other parent can have time with the children on certain times and days.) Or they may agree to share parental responsibility. In that case, the children live partly with each parent. Whatever parenting plan you and your spouse agree to, you can put it in a separation agreement.
A separation agreement can deal with property and debt
A separation agreement can deal with property and debt issues, including:
- How family property (property acquired during the relationship) will be divided.
- 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. It also sets out the rules for how to divide that family property and debt. Basically, when a couple separates, each spouse has a right to equally share in property they acquired together. Each spouse also gets a share of the increase in value of any property that either brought into the relationship. The law calls this increase family property as well.
The Act also sets out how to handle excluded property (assets that are not family property). This can be complicated — if you have a lot of assets, you should get help from a lawyer.
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.
See our information on dividing property and debts for more on this topic.
Who is responsible for debts
When a couple separates, each spouse is usually responsible for half of the debt incurred during the relationship. The law calls this family debt. Each spouse may also be responsible for half of the debt incurred after separation. This is true if the money went to maintaining family property.
Spouses can deal with division of debt in a separation agreement. Until then, they must make decisions about paying the family bills. Does the spouse who gets to live in the house have to pay the mortgage? Who will pay for the credit cards and utilities? Our information on dividing property and debts has more on this topic.
What happens to the family home
A separation agreement can say what happens with the family home. Spouses can decide whether one spouse will keep it, whether it’ll be sold, or whether some other arrangement will be made. Even if the home is in one spouse’s name, the other spouse may be entitled to a share in it.
Some spouses think the parent who usually has the children ought to be the one who stays in the home. This is so that the children can continue to live in the family home until they finish high school.
Others think it’s best for only the children to stay in the home, while the parents take turns moving in and out. This is called nesting.
Yet another option: both spouses stay in the home until an agreed-upon date or until one of them wants to sell. There are many possibilities so it’s helpful to get legal advice about your options.
Do I need a separation agreement to get divorced?
You don’t need a separation agreement to get divorced. But if you have children, the court will want to see evidence that reasonable financial arrangements have been made for them. Otherwise the divorce order won’t be granted.
Having a separation agreement can be helpful because:
- you can set out the arrangements you and your spouse have agreed to, and
- the divorce application process could end up being less expensive, faster, and uncontested.
If you don’t have children and there aren’t any property or support issues, then you may not need a separation agreement. It’s a good idea to get independent legal advice from a family lawyer. They can help you decide whether you need a separation agreement or whether to sign one.
What happens if one spouse won’t work on a separation agreement?
You can’t force someone to sign a separation agreement. If you want to resolve things but the other spouse doesn’t, you have a few options.
First, you can get a lawyer. They might be able to help with negotiating an agreement.
Second, you can suggest mediation. (Either with or without the help of lawyers, family justice counsellors, or private mediators.) Or you can suggest a collaborative practice approach.
Third, you can suggest arbitration. This involves hiring a neutral third party to make decisions about your dispute. You and your spouse agree to be bound by these decisions.
Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial.
Are mediation or collaborative practices helpful?
Both the BC Family Law Act and the Divorce Act encourage separated spouses to resolve their family law issues out of court. Using negotiation or mediation is a good idea — unless it would be inappropriate in the circumstances (for example, where there has been family violence).
You and your partner may want to make decisions together. But you may be having trouble negotiating with one another. Mediation can help. A trained family law mediator, such as a family justice counsellor or a private mediator, can work with you. They can help you to develop a parenting plan for the children and help you make other decisions as well.
A collaborative practice approach may also be used to settle things. Here, the couple and their lawyers agree to work together. They can negotiate an agreement. The couple and their lawyers sign a collaborative participation agreement saying no one will go to court or threaten to. If the collaborative negotiation process breaks down, the spouses must hire new lawyers if they want to go to court.
For more on these options, see our information on mediation and collaborative practice.
What happens if one spouse dies during negotiations?
If a spouse dies before a separation agreement is signed or before a court action is started, this can seriously affect how property and debts are divided. Things can get complicated.
You should get legal advice about how best to protect yourself if:
- you know you are dying,
- your partner may die before things are resolved, or
- your partner died after separation but before you finalized a separation agreement.
What if we run a family business together?
If you run a business together, you may not want to be business partners after you separate. It’s important to resolve all of the financial issues relating to your business. They can be complicated (especially if there are tax issues), so it’s a good idea to get legal advice from a family lawyer before making a separation agreement.
Should we hire a lawyer to write our separation agreement?
Separation agreements can have a serious and long-lasting impact on your legal rights and obligations. So it’s a good idea to have a lawyer prepare yours if you can.
Spouses can’t share the same lawyer. To keep legal fees down, one spouse’s lawyer could prepare the agreement. Then, the other spouse can see a lawyer to get independent legal advice about it.
If you and your spouse decide to prepare your own agreement, it’s a good idea to get legal advice before you sign it. Once signed, the agreement is legally binding and enforceable by a court.
In our “Who can help” section below, we describe options for low-cost legal advice.
What does a separation agreement cost if a lawyer prepares it?
It depends on the lawyer you pick and how complicated your situation is. Lawyers typically charge an hourly rate. You may want to call a few different lawyers and ask what they charge to make a separation agreement. An agreement may start at about $2,500 but may ultimately end up costing many thousands of dollars.
To save time and money, take as much information with you as you can when you see your lawyer, including:
- income tax returns
- pay stubs for you and your partner
- documents about the home and any mortgage
- papers about other assets such as pensions, retirement savings plans, life insurance policies, 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 your financial needs. Consider preparing a list of your monthly expenses before you see a lawyer. This will help your lawyer give you informed advice about your options.
Should we file our separation agreement in court?
You don’t have to file your completed separation agreement in court. But if you do, you can file in BC Provincial (Family) Court or BC Supreme Court. Filed agreements that include terms about parenting and support can be enforced as if they are court orders.
Legal Aid BC has self-help guides that can help you with filing your agreement in BC Provincial (Family) Court or in BC Supreme Court. It’s free to file an agreement in BC Family Court. But you have to pay a court filing fee and fill out an extra form if you file in BC Supreme Court.
How long does a separation agreement last?
They’re meant to be permanent, so most separation agreements last until one or both people die. Agreements that end sooner will say so. However, agreements about children and support may be changed if there’s a material change in circumstances.
I’m married but separated. Do I have to apply for a divorce?
For a marriage to end, married but separated spouses must divorce. That means they must get a BC Supreme Court order saying they are divorced. After that, they can remarry. (For more on divorce, see our information on the requirements for divorce.)
For unmarried spouses and other unmarried couples, the relationship is over the moment they separate. They do not have to apply for a divorce. Unmarried couples include people who have lived together for less than two years and have no children together.
Who can help
With more information
The Family Law in BC website from Legal Aid BC has a step-by-step guide for making a separation agreement.
The wikibook JP Boyd on Family Law explains the formal requirements of a separation agreement in detail.
Free and low-cost legal help
The Unbundled Legal Services website can help you find a lawyer who can review a draft of your separation agreement and give you independent legal advice.
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.
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