Difference between revisions of "Separation and Separation Agreements"

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{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit], Brown Henderson Melbye and [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= October 2018}} {{Dial-A-Law TOC|expanded = divorce}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit], Brown Henderson Melbye|date= May 2020}} {{Dial-A-Law TOC|expanded = divorce}}
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.  
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'''.


==Understand your legal rights==
{{PLSStorybox
| image = [[File:Hannah.png|link=]]
| text      = “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.” <br>– Hannah, Pemberton, BC
}}


===What amounts to separation===  
==What you should know==
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.
===When you are separated===
[http://canlii.ca/t/8q3k Under the law in BC], a '''spouse''' is someone who:


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.
* 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.


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.
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.
 
====Attempts to get back 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''' without it affecting the date they are seen to have separated. (Married spouses can [[Requirements for Divorce and Annulment|divorce after having lived separate and apart for at least one year]].) If they live together for more than 90 days, the clock resets and a new one-year separation period begins, if they separate again.
 
====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.
 
{| class="wikitable"
|align="left"|'''Tip'''
You can be considered separated even if you and your spouse still live in the same home after your relationship ends. Legal Aid BC’s Family Law website [https://family.legalaid.bc.ca/separation-divorce/going-through-separation/proving-youre-separated-if-you-still-live-together explains what factors can prove you're separated if you and your spouse still live together].
|}


===There is no “legal separation” in BC===
===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.  
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 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.
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:


===Only married spouses need to divorce to end their legal relationship===
* one person tells the other they want to end their relationship, or
Under the [http://canlii.ca/t/8q3k law in BC], spouses can be married or they can live together in a “marriage-like relationship”.  
* a couple jointly decides to end their relationship.


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


For a marriage to end, however, married spouses must '''divorce'''. That means they must get a court order saying they are divorced.
You should consider making a separation agreement for these reasons:


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


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.
===A separation agreement can deal with support and parenting arrangements===
For married and unmarried spouses, a separation agreement can cover 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'''.


===When you can get a divorce===
For parents, there may be additional family law issues in a separation agreement, including:
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.
* 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.


Married spouses can also apply for divorce sooner than one year if:
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.
*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 separation agreement can deal with property and debt=== 
A separation agreement can deal with property and debt issues, including:


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.
* How '''family property''' (property acquired during the relationship) will be divided.
* How responsibility for '''family debts''' will be shared.


For more information on the grounds for divorce, see our information on [[Requirements for Divorce and Annulment (No. 120)|requirements for divorce and annulment (no. 120)]].
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec84_smooth 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.


===A separation agreement documents how you settled the issues=== 
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.
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:
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.
*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 ''[http://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:
[[Dividing Property and Debts|See our information on dividing property and debts]] for more on this topic.
*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 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.
====Who is responsible for debts====
When a couple separates, each spouse is usually responsible for half of the debt incurred during the relationship. [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec86_smooth 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? [[Dividing Property and Debts|Our information on dividing property and debts]] has more on this topic.


===What happens to the family home===
===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.  
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.
 
==Common questions==
 
===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:


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.  
* 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.


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'''.  
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.


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.
===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.


===Other property you own together===
First, you can get a lawyer. They might be able to help with negotiating an agreement.
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)|dividing property and debts (no. 124)]] for more on this topic.


===Who is responsible for debts===
Second, you can suggest ways to work out an agreement without going to court. One way is '''mediation'''. This involves meeting with a neutral person, a mediator, who helps you both find a solution you agree on. Or you can suggest a '''collaborative negotiation''' approach. This is a kind of negotiation where you each have your own lawyer and agree you will do everything possible to reach an agreement without going to court. A third way you might suggest is '''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. [[Mediation and Collaborative Practice|We explain all of these options here]].
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.  


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.  
Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial.


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)|dividing property and debts (no. 124)]] has more on this topic.
===Are mediation or collaborative negotiation 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).


==Common questions==
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 negotiation''' 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.


===Do I need a separation agreement to get divorced?===
For more on these options, [[Mediation and Collaborative Practice|see our information on mediation and collaborative negotiation]].
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 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.


===What are our options for the care of our children?===
You should get legal advice about how best to protect yourself if:
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.
* 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?===
===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.
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.


===Are mediation or collaborative practice helpful?===
===Should we hire a lawyer to write our separation agreement?===
'''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.
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.


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.
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.


For more information on these options, see our information on [[Mediation and Collaborative Practice (No. 111)|mediation and collaborative practice (no. 111)]].
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.


===Should we hire a lawyer to prepare our separation agreement?===
In our “Who can help” section below, we describe options for low-cost legal advice.
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?===
===What does a separation agreement cost if a lawyer prepares it?===
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:
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.
*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.
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.
 
{| class="wikitable"
|align="left"|'''Tip'''
Legal Aid BC has self-help guides that can help you with [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/file-your-agreement-provincial-court filing your agreement in BC Provincial Court] or [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/file-your-agreement-supreme-court in BC Supreme Court]. It’s free to file an agreement in Provincial Court. You have to pay a court filing fee and fill out an extra form if you file in Supreme Court.
|}


===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.
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.
 
===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?===
===I’m married but separated. Do I have to apply for a divorce?===
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.  
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, [[Requirements for Divorce and Annulment|see our information on the requirements for divorce]].)


First, you can get a lawyer.
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.


Second, you can suggest '''mediation''' (either with or without lawyers), or a '''collaborative practice''' approach. 
==Who can help==


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.
===With more information===
The '''Family Law in BC website''' from Legal Aid BC has a '''step-by-step guide''' for making a separation agreement.


Lastly, you can go to court.
* [https://familylaw.lss.bc.ca/guides/separation/index.php Visit website]


==Get help==
The wikibook ''JP Boyd on Family Law'' explains the formal requirements of a separation agreement in detail.


===With a separation agreement===
* [[Separation Agreements|Visit website]]
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]


The wikibook '''''JP Boyd on Family Law''''' explains separation agreements in detail.
===Free and low-cost legal help===
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=Separation_Agreements wiki.clicklaw.bc.ca]
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.


* [https://unbundlinglaw.peopleslawschool.ca/ Visit website]
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].


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Latest revision as of 03:37, 13 May 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye in May 2020.
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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.

Hannah.png
“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

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.

Attempts to get back 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 without it affecting the date they are seen to have separated. (Married spouses can divorce after having lived separate and apart for at least one year.) If they live together for more than 90 days, the clock resets and a new one-year separation period begins, if they separate again.

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.

Tip

You can be considered separated even if you and your spouse still live in the same home after your relationship ends. Legal Aid BC’s Family Law website explains what factors can prove 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 cover 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.

Common questions

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 ways to work out an agreement without going to court. One way is mediation. This involves meeting with a neutral person, a mediator, who helps you both find a solution you agree on. Or you can suggest a collaborative negotiation approach. This is a kind of negotiation where you each have your own lawyer and agree you will do everything possible to reach an agreement without going to court. A third way you might suggest is 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. We explain all of these options here.

Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial.

Are mediation or collaborative negotiation 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 negotiation 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 negotiation.

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.

Tip

Legal Aid BC has self-help guides that can help you with filing your agreement in BC Provincial Court or in BC Supreme Court. It’s free to file an agreement in Provincial Court. You have to pay a court filing fee and fill out an extra form if you file in 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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Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
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