Separation and Separation Agreements

What is separation?

Married and unmarried couples have separated when one or both of them make the decision that their relationship cannot continue, and communicate that decision to the other person. People do not need to agree to separate; only one person needs to decide that the relationship is over 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 with one set of household bills than live apart with two sets of bills. If the couple stays living under the same roof, they will usually move into different bedrooms, stop sharing meals together and so on.

Separation doesn’t 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.

Who is a spouse?

Under the federal Divorce Act, a “spouse” is someone who is or was married to someone else. Under the provincial Family Law Act, the term “spouse” includes:

• people who are married to each other;
• people who lived together in a marriage-like relationship for at least two years; and,
• people who lives together in a marriage-like relationship for less than two years, if the couple has had a child together.

Do you have to think about divorce now?

Only married spouses need to divorce to end their legal relationship. However, if you’re married and have just separated, you don’t have to worry about divorce yet. Divorce is usually a fairly low priority. Most married spouses have more important things to think about, such as where the children will live, how the children’s time will be shared, whether support should be paid and how property and debt should be divided.

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 apply for divorce sooner than one year if one of them has committed adultery, which hasn’t been forgiven by the other spouse, or if one of them has abused the other and it is not possible to continue the relationship. Most marriage spouses apply for a divorce because of their separation, not because of adultery or cruelty. The only thing you get for asking for a divorce on these grounds is a quicker divorce. If you are thinking of asking for a divorce because of adultery or cruelty, remember that you must be able to prove that the adultery or the cruelty happened.

For information on the grounds for divorce, refer to script 120 on “Requirements for Divorce and Annulment”.

What is a “separation agreement”?

A separation agreement is the written record of how a couple has settled of the issues arising from the end of their relationship.

For 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.
• For married spouses and unmarried spouses who have lived together for at least two years, how family property will be divided and how responsibility for family debts will be shared.

For parents, including spouses who are parents, these issues include:

• Who 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 parental responsibilities and parenting arrangements.
• 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 manage to settle these issues, you should consider making a separation agreement for two reasons. First, separation agreements are legal contracts recording the terms of your settlement that 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.

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 specified 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. You may want to get some advice first from a counsellor or lawyer.

Support

For more information about support, refer to 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 refer to script 133 on “Income Tax Implications of Support Payments”.

The family home

A separation agreement can also say whether one spouse will get to keep the family home or whether it will be sold. Don’t forget that 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; for others, 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. There are many choices, and 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. If you own other property in addition to your home (for example, a car, a cottage or investments), a separation agreement can cover how to divide these assets too. Refer to script 124 on “Dividing Property and Debts” for more on this topic.

Debts

When a couple separated, each spouse is usually responsible for one-half of the debt accumulated during the relationship. This can be covered in a separation agreement too. Until then, decisions must also be made about paying for 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? Refer to script 124 on “Dividing Property and Debts” for more on this topic.

Family businesses

If you run a business together you probably won’t want to be business partners any longer. It is important to resolve all of the financial issues relating to your business. These can also be dealt with in a separation agreement.

Are mediation or collaborative settlement processes a good idea?

Mediation can be very helpful if you and your partner want to make decisions in the most cooperative way possible and are having trouble negotiating with each other. A trained 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, but if you see a mediator, it’s important that you consult a lawyer about your rights and responsibilities before signing any agreement.

A collaborative 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 you should each get your own lawyers to learn about your rights and obligations and about what your agreement means.

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 RRSPs, investment accounts and savings accounts
• Documents relating to any debts such as credit cards and lines of credit

Also, think about what your financial needs are and consider preparing a list of your monthly expenses before you go. 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.

What happens if one spouse dies during negotiations?

The death of one person before the couple have signed a separation agreement or the court has made a final order can have a serious impact on how property and debts are shared. This can get complicated, so you should obtain legal advice from a lawyer about how best to protect yourself if there is a chance your partner may die before things are resolved.

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 reach a settlement on these issues and want to avoid going to court. If you can negotiate a settlement, you should have a lawyer prepare the written agreement and you should each have your own lawyer to give you advice about the meaning and legal effect of the agreement.

More information

• The laws referred in this script are available at www.bclaws.ca or http://laws-lois.justice.gc.ca.
• You can more information about separation, separation agreements, caring for children after separation, child support and spousal support, and the sharing of property and debt the from wikibook JP Boyd on Family Law, published by Courthouse Libraries BC, at wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law.

[updated October 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

In family law, the resumption of cohabitation between married spouses or unmarried spouses with the intention of attempting to salvage their relationship and making another go of it. See "maried spouse," "separation" and "unmarried spouse."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

The conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."