Difference between revisions of "Separation and Separation Agreements"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(49 intermediate revisions by 5 users not shown)
Line 1: Line 1:
{{DEMOWARNING}}
{{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}}
{{Dial-A-Law Blurb}}
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'''.


==What is separation?==
{{PLSStorybox
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.
| 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
}}


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 you should know==


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


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.
* 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.


==What is a “legal separation”?==
Spouses are separated when '''one or both''' people:
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?==
* decide their relationship is over,
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:
* tell the other person their decision, and
* act like the relationship is over.


*people who are married to each other;
Spouses don’t need to agree to separate.
*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?==
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.
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?==
====Attempts to get back together====
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.
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 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.
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.


For information on the grounds for divorce, refer to script [[Requirements for Divorce and Annulment (Script 120)|120] on “Requirements for Divorce and Annulment”.
====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.


==What is a “separation agreement”?==
{| class="wikitable"
A separation agreement is the written record of how a couple has settled of the issues arising from the end of their relationship.
|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].
|}


For spouses, these issues usually include:
===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.


*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.
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:
*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:
* one person tells the other they want to end their relationship, or
*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.
* a couple jointly decides to end their relationship.
*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.
===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.


==The care of children==
You should consider making a separation agreement for these reasons:
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==
* It’s a legal contract recording the terms of your agreement.
For more information about support, refer to script [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/117 117] on “Child Support” and script [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/123 123] on “Spousal Support”. The income tax rules about support payments are important too, so you should also refer to script [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/133 133] on “Income Tax Implications of Support Payments”.
* 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.


==The family home==
===A separation agreement can deal with support and parenting arrangements===
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.
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'''.


==Other property==
For parents, there may be additional family law issues in a separation agreement, including:
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 [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/124 124] on “Dividing Property and Debts” for more on this topic.


==Debts==
* How the parents will cover the children’s financial needs. This is called '''child support'''.
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 [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/124 124] on “Dividing Property and Debts” for more on this topic.
* 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.


==Family businesses==
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.
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?==
===A separation agreement can deal with property and debt===
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 separation agreement can deal with property and debt issues, including:


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


For more information on this, refer to script [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law/111 111] on “Mediation and Collaborative Settlement Processes”.
[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 lawyer should prepare your separation agreement==
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.
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?==
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.
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
[[Dividing Property and Debts|See our information on dividing property and debts]] for more on this topic.
*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.
====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.


==How long does a separation agreement last?==
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.
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?==
===What happens to the family home===
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.
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.


==Summary==
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.
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.
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'''.


==More information==
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.
*The laws referred in this script are available at [http://www.bclaws.ca www.bclaws.ca] or [http://laws-lois.justice.gc.ca 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 [http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law].


==Common questions==


[updated October 2014]
===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. [[Mediation and Collaborative Practice|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, [[Mediation and Collaborative Practice|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.
{| 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?===
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, [[Requirements for Divorce and Annulment|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.
* [https://familylaw.lss.bc.ca/guides/separation/index.php Visit website]
The wikibook ''JP Boyd on Family Law'' explains the formal requirements of a separation agreement in detail.
* [[Separation Agreements|Visit website]]
===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.
* [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]].
{{Dial-A-Law_Navbox|type=families}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}

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.
Dial-A-Law
Dial-A-Law‎
This page is
from Dial-A-Law‎,
a starting point for
information on the law
in British Columbia.
See the full contents.
About
Introduction
Consumer & Money
Work & Business
Families & Children
Divorce & Separation
 · Separation & Separation Agreements

 · Deciding Who Will Move Out

 · Requirements for Divorce & Annulment

 · Desk Order Divorce

 · Responding to Divorce Proceedings

 · Guardianship & Parenting Arrangements

 · Child Support

 · Spousal Support

 · Enforcing Support Orders & Agreements

 · Tax Implications of Support Payments

 · Dividing Property & Debts
Life
Courts & Crime
From
Visit more from People's Law School
People's Law School
v • d • e

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.

v • d • e
 
Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


Retrieved from "https://stagewiki.clicklaw.bc.ca/index.php?title=Separation_and_Separation_Agreements&oldid=49325"