People often hear the term “legal separation”, but there is actually no such thing in Canada.
When do people become officially separated?
As soon as a couple who is married or living common-law starts living apart (with at least one person wanting to separate), they are officially separated.
They do not have to consult with a lawyer, process documents, or go to court.
If married, the couple stays legally married until a divorce is granted.
Some separated couples still share a residence to save money.
Couples should note that there are time limits if they want to divide property, debt, or pension or apply for spousal support.
How do couples decide how to deal with things like property, parenting, child support, and spousal support?
If couples can come to an agreement on all of the above matters, they can avoid court and save time and money with a separation agreement.
Separation agreements are contracts that outline all of the issues and how they are to be dealt with when a relationship (married or common-law) ends. If the parties fail to live up to what they agreed to, the contract would then be enforceable in court.
One of the challenges with separation agreements is that both parties have to be able to get along well enough to come to an agreement that is fair and put it into action.
Separation agreements can be negotiated and signed at any time after the breakdown of a relationship, including after a court proceeding has been started.
It is a good idea for parties to consult with a family lawyer to ensure that all of the bases have been adequately covered, as they know the ins and outs of family law and contract law. Consulting with a lawyer will give everyone peace of mind to know that everything has been done the right way.
Each party will likely have a good idea as to how they would like to see the issues resolved. They then discuss everything and exchange ideas to reach a compromise. One of the parties then creates a formal agreement and gives it to the other party to review to ensure it accurately reflects what was discussed.
Independent legal advice
When both parties are satisfied with the contents of the separation agreement, they must take their agreement to a lawyer to seek advice on how the separation agreement affects their legal rights and the options they may have open to them if they don’t sign the agreement. This is called getting independent legal advice.
Getting independent legal advice is very important because:
(1) Parties have to understand their obligations and rights regarding the separation agreement
(2) Parties must know how the agreement affects rights they would have, had they moved forward with a court proceeding
(3) It prevents either party from being to claim that they didn’t understand everything in the separation agreement
Once that is done, parties must sign the separation agreement in the presence of a witness. The witness then also signs it. The witness does not bear responsibility for anything pertaining to the agreement.
Always consult with your lawyer
It can be tempting to work out things with your spouse without consulting a lawyer. Always make sure that your lawyer is kept in the loop and consulted with before you sign off on anything. Dealing with a lawyer will also ensure that you do not end up settling for less than they could have negotiated on your behalf.
What happens if a couple decides to reconcile?
The separation agreement can address situations where the couple reconciles. Depending on the couple, either the whole or part of the agreement may be voided at reconciliation.
Couples may also want to use the services of a mediator in the negotiation and discussion phase to ensure that they are covering all bases.
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Read more about Cohabitation Agreements in BC and Marriage Agreements in BC.