What Exactly is a Separation Agreement?

March 20, 2019

A separation agreement is a written contract between you and your former partner (whether you were married or unmarried spouses) that outlines how you and your spouse have agreed to deal with the division of your property and debts, spousal support, child support, and/or parental responsibilities and parenting time.

A well-drafted, thorough separation agreement will include topics such as the family home, recreational property, investment property, the family business, debts, pensions, life insurance, medical and dental benefits, the children’s extra-curricular activities, and dispute resolution.

A separation agreement is made when the relationship is over, and records the settlement reached between the two spouses through negotiation. A cohabitation or marriage agreement is made at the beginning of a relationship.

A separation agreement can be customized to cover the specific needs and unique circumstances of each family. It can cover pretty much any topic that the former spouses want to include, such as how they will manage the family pets, how they will communicate with one another about the children, what’s going to happen with the family home, the family business, and so on. Agreements are far more flexible than court orders. In fact, there are issues that can be covered in a separation agreement that you won’t see in court orders.

A separation agreement can be put in place at any time after married or unmarried spouses have separated, whether court proceedings have been started or without ever going to court.

It is best to have a separation agreement prepared by a lawyer or a lawyer-mediator, or at least have it reviewed by a lawyer. You and your former spouse will each need to have your own lawyer because lawyers can only represent one of the spouses in a separation or divorce. It is a conflict of interest for a lawyer to advise both spouses.

An agreement is binding once both spouses have signed it. Don’t sign an agreement if your spouse, or anyone else, puts any pressure on you to sign it. An agreement that is signed because a person feels forced to sign it can be challenged in court.

If you file your separation agreement with the court, it will be enforceable in the same way that a court order would be.

If one spouse does not follow what has been agreed to in the separation agreement, then the other spouse can go to court to have a judge enforce the agreement. The court usually respects what people have agreed to in a separation agreement, except in certain circumstances a judge may set aside parts of an agreement.

If your former spouse isn’t paying child support and/or spousal support as outlined in the separation agreement, you can register with the Family Maintenance Enforcement Program (https://www.fmep.gov.bc.ca/), a free government service, to collect the support payments.

You and your former spouse can change parts of your separation agreement at any time after it has been signed if you both agree to it. The most common sections of an agreement that former spouses review and change over time are the terms regarding the children, such as parental responsibilities, parenting time, and child support.

This type of agreement provides families with reassurance and certainty at a time when emotions are high and change is inevitable. It provides structure for an unfolding family, and ensures that all aspects deemed important by that family, are taken care of.