Difference between revisions of "Separation and Separation Agreements"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
==What is separation?==
The end of a relationship is a particularly difficult time. There are so many decisions and issues to sort through. An agreement that records the arrangements can make things easier.  
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.
==Understand your legal rights==


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.
===What amounts to separation===
Couples have '''separated''' when one or both of them decide their relationship is over and inform the other of their decision. People do not need to agree to separate; only one person needs to decide the relationship is over and communicate that decision to the other person for a couple to be separated.


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.
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.


==What is a legal separation?==
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 to deal with their property, children and any potential support claims.
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?==
Separation does not always mean 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.
Under the federal ''[https://laws-lois.justice.gc.ca/eng/acts/D-3.4/FullText.html Divorce Act]'', a '''spouse''' is someone who is or was married to someone else. Under the BC ''[http://www.bclaws.ca/civix/document/id/complete/statreg/11025_01 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?==
===There is no “legal separation” in BC===
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.
There is no such thing as a “legal separation” in British Columbia. There are no papers to sign to separate. You don’t need to see a judge or a lawyer to separate. Couples can separate anytime.  


==When can you get a divorce?==
That said, it’s important to note the '''date you separate'''. 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 they want to end their relationship, or the couple jointly decide to end their relationship.
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.
===Only married spouses need to divorce to end their legal relationship===
Under the [http://canlii.ca/t/8q3k law in BC], spouses can be married or they can live together in a “marriage-like relationship”.
 
For unmarried spouses and other unmarried couples, their relationship is over the moment they separate.
 
For a marriage to end, however, married spouses must '''divorce'''. That means they must get a court order saying they are divorced.  


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


For information on grounds for divorce, check script [[Requirements for Divorce and Annulment (Script 120)|120]] on “Requirements for Divorce and Annulment”.
===When you can get a divorce===
Married spouses may apply to court for a divorce order after they have been '''separated for one full year'''.  


==What is a separation agreement?==
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.
A separation agreement is the written and signed record of how a couple has settled the issues arising from the end of their relationship.
 
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 tolerable.
 
Most married spouses apply for a divorce after the one-year separation, rather than because of adultery or cruelty. It’s harder to prove adultery or cruelty. The person alleging adultery or cruelty must prove it. The only thing you get for basing a divorce on adultery or cruelty may be a quicker divorce. There are no other benefits to this route.
 
A divorce order starts a two-year “limitation period” running. Within that two years, a spouse can sue the other for the division of property, debt, pension and spousal support.
 
For more information on the grounds for divorce, see our information on [[Requirements for Divorce and Annulment (Script 120)|requirements for divorce and annulment (no. 120)]].
 
===A separation agreement documents how you settled the issues===
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:
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.
*Whether a spouse is entitled to financial help with their 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.
*How '''family property''' will be divided and how responsibility for '''family debts''' will be shared. The ''[htthttp://canlii.ca/t/8q3k 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:
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.
*Whom the children should live with and how decisions about the care of the children will be made? Under the ''[http://canlii.ca/t/7vbw 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 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.
*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.
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?==
===What happens to the family home===
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.  
A separation agreement can 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 home 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 home so 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 home while the parents move in and 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.


==The care of children==
===Other property you own together===
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.
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 the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec84_smooth 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. See our information on dividing property and debts (no. 124) for more on this topic.


==Support==
===Who is responsible for debts===
For more information about support, check script [[Child Support (Script 117)|117]] on “Child Support” and script [[Spousal Support (Script 123)|123]] on “Spousal Support”. The income tax rules about support payments are important too, so you should also check script [[Income Tax Implications of Support Payments (Script 133)|133]] on “Income Tax Implications of Support Payments”.
When a couple separates, each spouse is usually responsible for one half of the debt incurred during the relationship. This is called '''family debt''' under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec86_smooth 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.  


==The family home==
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.  
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==
The division of debt can be covered in a separation agreement. 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? Our information on [[Dividing Property and Debts (Script 124)|dividing property and debts (no. 124)]] has more on this topic.
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 [http://www.bclaws.ca/civix/document/id/complete/statreg/11025_05#section84 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 [[Dividing Property and Debts (Script 124)|124]] on “Dividing Property and Debts” for more on this topic.


==Debts==
==Common questions==
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 [http://www.bclaws.ca/civix/document/id/complete/statreg/11025_05#section86 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 [[Dividing Property and Debts (Script 124)|124]] on “Dividing Property and Debts” has more on this topic.


==Family businesses==
===Do I need a separation agreement to get divorced?===
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.
You do not need a separation agreement to get divorced. But before granting your divorce order, the court will want to see evidence that parenting, support and property division have been dealt with. It helps to have a separation agreement or court order setting out the arrangements that have been agreed to.  


==Are mediation or collaborative settlement processes helpful?==
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, it’s wise to get independent legal advice from a family law lawyer.  
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.
===What are our options for the care of our 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.  


For more information on this, refer to script [[Mediation and Collaborative Settlement Processes (Script 111)|111]] on “Mediation and Collaborative Settlement Processes”.
You may want to get some guidance 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.


==A lawyer should prepare your separation agreement==
===What if we run a family business together?===
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.
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.


==What does a separation agreement cost?==
===Are mediation or collaborative practice 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 help you make other decisions. 
 
A '''collaborative practice''' approach may also be used to settle things. In this approach, the couple and their lawyers agree to cooperate and work together to negotiate an agreement resolving the issues arising from the separation. The couple and their lawyers sign a collaborative participation agreement saying 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 these options, see our information on [[Mediation and Collaborative Settlement Processes (Script 111)|mediation and collaborative practice (no. 111)]].
 
===Should we hire a lawyer to prepare our 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. To save on legal fees, 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:
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
*income tax returns
*Paystubs for you and your partner
*paystubs for you and your partner
*Documents about the house and mortgage
*documents about the home and any mortgage
*Papers about other assets such as pensions, RRSPs, investment accounts and savings accounts
*papers about other assets such as pensions, retirement savings plans, investment accounts, and savings accounts
*Documents relating to any debts such as credit cards and lines of credit
*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
*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.
Also, think about what your financial needs are and 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.


==How long does a separation agreement last?==
===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.
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?==
===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.
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?==
===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.
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), or a '''collaborative practice''' approach. 
 
Third, you can suggest '''arbitration'''. Arbitration involves hiring an arbitrator to act as 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.


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.
==Get help==


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.
===With a separation agreement===
The '''Family Law in BC website''' from Legal Services Society (the legal aid provider in BC) includes a step-by-step guide to draft a separation agreement.
:Web: [https://familylaw.lss.bc.ca/guides/separation/index.php familylaw.lss.bc.ca]


==Summary==
The wikibook '''''JP Boyd on Family Law''''' explains separation agreements in detail.
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.
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=Separation_Agreements wiki.clicklaw.bc.ca]
 
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 [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law?_ga=2.27379644.1465218859.1540827756-1141987961.1503074809 family law series]
*''[http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law JP Boyd on Family Law]''




[updated October 2018]
[updated October 2018]


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


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Revision as of 18:49, 30 January 2019

The end of a relationship is a particularly difficult time. There are so many decisions and issues to sort through. An agreement that records the arrangements can make things easier.

Understand your legal rights

What amounts to separation

Couples have separated when one or both of them decide their relationship is over and inform the other of their decision. People do not need to agree to separate; only one person needs to decide 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 to deal with their property, children and any potential support claims.

Separation does not always mean 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.

There is no “legal separation” in BC

There is no such thing as a “legal separation” in British Columbia. There are no papers to sign to separate. You don’t need to see a judge or a lawyer to separate. Couples can separate anytime.

That said, it’s important to note the date you separate. 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 they want to end their relationship, or the couple jointly decide to end their relationship.

Only married spouses need to divorce to end their legal relationship

Under the law in BC, spouses can be married or they can live together in a “marriage-like relationship”.

For unmarried spouses and other unmarried couples, their relationship is over the moment they separate.

For a marriage to end, however, married spouses must divorce. That means they must get a court order saying they are divorced.

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

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 you can 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 tolerable.

Most married spouses apply for a divorce after the one-year separation, rather than because of adultery or cruelty. It’s harder to prove adultery or cruelty. The person alleging adultery or cruelty must prove it. The only thing you get for basing a divorce on adultery or cruelty may be a quicker divorce. There are no other benefits to this route.

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

For more information on the grounds for divorce, see our information on requirements for divorce and annulment (no. 120).

A separation agreement documents how you settled the issues

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 with their 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 [htthttp://canlii.ca/t/8q3k 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.

What happens to the family home

A separation agreement can 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 home 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 home so 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 home while the parents move in and 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.

Other property you own together

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 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. See our information on dividing property and debts (no. 124) for more on this topic.

Who is responsible for debts

When a couple separates, each spouse is usually responsible for one half of the debt incurred during the relationship. This is called family debt under 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. 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? Our information on dividing property and debts (no. 124) has more on this topic.

Common questions

Do I need a separation agreement to get divorced?

You do not need a separation agreement to get divorced. But before granting your divorce order, the court will want to see evidence that parenting, support and property division have been dealt with. 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, it’s wise to get independent legal advice from a family law lawyer.

What are our options for the care of our 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 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.

What if we run a family business together?

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.

Are mediation or collaborative practice 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 help you make other decisions.

A collaborative practice approach may also be used to settle things. In this approach, the couple and their lawyers agree to cooperate and work together to negotiate an agreement resolving the issues arising from the separation. The couple and their lawyers sign a collaborative participation agreement saying 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 these options, see our information on mediation and collaborative practice (no. 111).

Should we hire a lawyer to prepare our 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. To save on legal fees, 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 home and any mortgage
  • papers about other assets such as pensions, retirement savings plans, 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 will help your lawyer give you informed advice about your options.

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), or a collaborative practice approach.

Third, you can suggest arbitration. Arbitration involves hiring an arbitrator to act as 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.

Get help

With a separation agreement

The Family Law in BC website from Legal Services Society (the legal aid provider in BC) includes a step-by-step guide to draft a separation agreement.

Web: familylaw.lss.bc.ca

The wikibook JP Boyd on Family Law explains separation agreements in detail.

Web: wiki.clicklaw.bc.ca


[updated October 2018]

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


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