Separation Agreements: An Overview

Separation Agreements: An Overview

What is a separation agreement?

Separation agreements are contracts between two persons in a romantic relationship regarding their familial rights and obligations towards each other.  These types of agreements allow people to negotiate issues such as how children will be taken care of, what kind of support will be paid between the spouses, and how to distribute assets such as the home.  Once the issues are identified and agreed upon, the separation agreement can provide certainty and peace of mind for both parties as they move on from the relationship.

 

Do I need a separation agreement to get divorced or get separated?

If you are married, (if you aren’t married skip on to the next paragraph) you don’t actually NEED a separation agreement in order to get divorced or to separate from your spouse.  The Divorce Act requires that there be a “breakdown of the marriage”.  This means that:

  1. you live separate and apart for one year;
  2. the other spouse has committed adultery; or
  3. one spouse has treated the other with physical or mental cruelty.

If you aren’t married, all that is required is that you live separate and apart.  However, what that means can be complicated depending on your circumstances.

Regardless of how you and your spouse (partner, husband, wife, boyfriend, girlfriend etc) broke up, getting a separation agreement can help both parties negotiate and finalize matters between them without involving costly and lengthy court proceedings.

 

We’re working well together, why bother with an agreement?

Although you and your spouse are cooperating well at this point, there is no telling how well you two will work together in the future.  If something happens in the future where the other person suddenly refuses to work with you, and the both of you do not have an agreement in place, there could be severe consequences regarding your ability to see your children, how support payments will be made, or how assets should be redistributed.  The best thing to do is to ensure that both of you are on the same page by drafting an agreement outlining your rights and responsibilities so you won’t be faced with any unpleasant surprises in the future.

 

Why can’t I just download an existing agreement and draft it myself?

You can.  Nothing prevents you from drafting a separation agreement that both you and your spouse sign together.  However, this is an agreement that will bind the both of you into the foreseeable future.  You want to make sure that all angles are covered and that you did not omit something or improperly word something that could have serious repercussions for you in the future.  There is no guarantee that the online agreements out there are up to date or that they have the appropriate clauses to protect you especially if your ex tries to challenge or have it set aside in court.  Having a lawyer draft the agreement for you is the best way to ensure that all important issues are covered, that everything is current to today’s laws in your jurisdiction, that the law surrounding those issues regarding your rights and obligations are explained to you, and that the agreement is executed properly.

 

Can I only get an agreement at separation?

No.  There are multiple types of “Domestic Contracts” under the Family Law Act.  Other types of agreements include:

  1. a cohabitation agreement if you are cohabiting (living) with another person and are not married;
  2. a marriage contract if you are getting married (colloquially known as a pre-nup); or
  3. a marriage contract after you get married (colloquially known as a post-nup).

Be mindful that there are certain issues (eg. Access to children) that cannot be addressed in these other types of agreements.  Feel free to contact our firm to see what agreement may be best for you.

 

What are the best reasons for hiring a lawyer to draft an agreement?

One of the biggest concerns for separating spouses is how the children will be taken care of.  The agreement can help both parties create a stable and effective parenting plan for how decisions will be made for the children such as residence, school, health care, religion and education.  The agreement can also help set out a visitation and/or time sharing schedule for the parents to follow.

Another major concern for spouses at separation is the family home.  Usually, this is the largest asset that both parties have during the relationship, and a separation agreement can go a long way to outlining who is getting the home, or how the home is to be sold and distributed between the two of you.  Also, if one of you is looking to purchase a new property after separation, mortgage companies will usually ask for an agreement between the two of you before they are willing to provide a mortgage for the new property.

Other assets that can be dealt with in agreements can include: joint bank accounts, debts, pensions, RRSP’s (Registered Retirement Savings Plans), pets, cars, and life insurance.

 

How do I make sure the agreement is enforceable?

Ensure that it is signed, written, and witnessed.

Ensure that you are well educated on:  what the law is, the legal meaning and consequences of the agreement terms and the assets and debts of both parties.  Hiring a lawyer to draft the Agreement and/or provide you with independent legal advice (“ILA”) provides this assurance.

ILA is provided when one party has their own lawyer review and explain the agreement to them.  This helps to ensure that the party understands the rights and obligations they are agreeing to.  The lawyer then signs an “ILA Certificate” stating that they reviewed the agreement with their client, that their client has not been forced into the agreement, and that they believe their client understands it.

Another common addition to agreements is a sworn financial statement.  Sworn financial statements outline things such as the parties’ income, their monthly spending, and their assets and debts.  Having this financial picture helps clearly identify the financial situation of both parties so that there is no confusion regarding either party’s assets.

Having both ILA and sworn financial statements in your agreement goes a long way to ensuring that the agreement won’t be overturned by a Court in the future  (if it ever ends up that) and that you have a strong shield to protect you should anything be challenged.

Finally, you can look at separation agreements as a ”living document” meaning that it should grow and change as your financial and/or family situation changes.  It’s a good idea to review it every few years to ensure that the terms of the agreement still say what you want them to say.

The Process of Executing a Separation agreement