When a relationship breaks down, feelings of uncertainty, confusion and stress are normal outcomes.
One way to bring some clarity to the future is to sit down with your ex-partner and work out a separation agreement.
However, that can be easier said than done. When emotions are still raw and the potential for disputes and confrontation high, it can be a real challenge to reason and negotiate with each other.
Properly drawn-up separation agreements are legally binding family law contracts that act as roadmaps for a couple after they split up.
The agreement details the rights and obligations of each spouse as they transition to single life from married life and, importantly, what will happen to any children from the relationship.
Your separation agreement may follow certain guidelines but will be unique to you and your ex and, for that reason, considerable thought needs to go into it.
Being a legally enforceable document that the court will review before granting a divorce, it’s important to address all the key aspects of the separation. Most commonly, this includes child custody, parenting and living arrangements, support, and the division of property/debt but you may need to include other matters too.
The bottom line is that in the absence of a proper separation agreement, your divorce may end up in the courts with a judge making key decisions about the outstanding issues.
British Columbia’s Family Law Act is very clear on separation agreements. They must be:
Each couple must make full financial disclosure before signing an agreement. You must declare all assets, property, investments, income, etc.
If it is discovered at a later date that other assets exist, it may invalidate the agreement and involve substantial costs to rectify the situation. The general requirements detailed above will create a legally enforceable separation agreement but it can run to 20-30 pages. Couples often struggle to cover everything required in the agreement without legal assistance.
Following is a little more information about what a comprehensive separation agreement should include:
Technically, you and your partner can prepare a separation agreement without the assistance of a family lawyer.
However, in reality, this is seldom attempted – and with good reason.
You have seen above how detailed a comprehensive separation agreement needs to be. Most couples do not have the time, legal expertise or state of mind during a separation to focus on the task at hand.
Besides, it is difficult to know whether the proposed terms are in your best interests or, instead, favour your partner.
A separation agreement may be referred to many times in the coming years, especially if you have young children. It’s important to get it right.
Significant consequences result from your decisions and, besides, the court will not approve an agreement that is not seen to be in the best interests of the children.
Put simply, the stakes are high and the process is much easier with the assistance of a family lawyer experienced in drafting separation agreements.
We can help you anticipate issues and address them in your agreement, ensuring that decisions are in your interests and legally enforceable. We can also protect you from claims that your partner was under duress to sign the agreement, which could invalidate it.
Your partner is likely to take independent legal advice before signing an agreement. It should be a priority for you too.
Part of the reasoning behind drafting a separation agreement is to avoid the expense and delays involved with litigation. However, it does not end your marriage. For that, the BC Supreme Court must issue an order.
The litigation process is expensive, time-consuming, and stressful. If a separation agreement can be worked out around the kitchen table, a desk in a law firm’s office, or a mediator’s meeting room, this is preferable for most couples.
Provided that your separation agreement is drawn up correctly, there may be no need for a court appearance. The judge can review your document, approve it, and sign the divorce decree if everything is in order.
If, however, the judge is not happy with the contents of the agreement, the case may require a court hearing.
In summary, the main benefits of a separation agreement are as follows:
At Jennings Family Law in Duncan, BC our divorce lawyers and mediators are committed to helping you achieve a prompt and cost-effective agreement with your spouse.
Contact us today for a confidential consultation and case evaluation.
