A Separation Agreement is a legally binding family law contract that is entered into by spouses after they separate. A Separation Agreement clearly outlines each party’s rights, obligations and responsibilities owed toward each other after separation, including clearly setting out how property will be divided. If the separating spouses have children, a Separation Agreement will also outline the parenting arrangements agreed upon between the separating spouses.

Sometimes people confuse ‘separation’ with a formal Separation Agreement. Being separated does not mean that you have dealt with and resolved all the issues arising from the breakdown of your relationship. You can be separated and still have not divided property, income or resolved parenting issues. Further, you can be separated but still reside in the same home. A Separation Agreement is the formalization of that separation into written form. Further, other than a Consent Order (an Order of the Court that is entered into by parties to a legal action when they agree upon the outcome), a Separation Agreement is one of the most common ways spouses record their terms of settlement in BC.

On a high level, you are considered separated if you or your spouse have decided to separate, have communicated this intention to separate, and have taken some kind of action to further this intention to separate. You can be separated, but still not have taken any steps to formalize any or all matters arising from the separation, such as property division, parenting arrangements, spousal support, etc.

So, how is a divorce different from separation? A divorce is the termination of your legal marriage which takes place after the separation of married spouses. While you may date and move in with someone after separation (even before a Separation Agreement has been finalized), you must be divorced before you can remarry. Only married people can get a divorce.

Further, obtaining a divorce in Canada is independent of the settling of all other matters arising from the breakdown of your marriage, such as property division, spousal or child support and parenting arrangements. Typically, a divorce is obtained after all other matters have been finalized, such as by entering a legally binding Separation Agreement, although this is not always the case.

It is important to note that a Divorce Order will start the clock running for various limitation periods. For example, a person will only have two years from the date of divorce to make a claim against his or her spouse’s property in BC, if the property division was not finalized in a Separation Agreement (or claimed in a family law court action) before getting a divorce. The courts also will not grant a divorce unless child support has been finalized in some form, such as by way of a Separation Agreement.

After spouses have decided to separate, they may want to negotiate a settlement of their legal issues and have the terms of their settlement formalized in a legally binding Separation Agreement.

Once two spouses enter into a Separation Agreement, they are legally independent of each other, both financially and personally. Generally speaking, only those rights and obligations owed to your former spouse set out in your Separation Agreement remain; and you are free to move on autonomously. Both married and unmarried spouses who are separating can enter a Separation Agreement.

A properly and expertly drafted Separation Agreement is key to ensuring your wishes and expectations are carried out. Below are 3 key factors to keep in mind when considering whether or not your verbal ‘deal’ with your former spouse should be reduced to a Separation Agreement:

A clear and concise Separation Agreement is legally binding, which means that the promises, rights and responsibilities set out in the Separation Agreement are enforceable in court.
A clear and concise Separation Agreement clearly outlines, term by term, the full and final settlement deal between two spouses, to avoid potential conflict and misunderstandings in the future.
A clear and concise Separation Agreement can outline legal obligations with respect to child support if you have children, which is necessary in order to get a divorce.

The above are only a few of the benefits of a legally binding Separation Agreement. Our Surrey family lawyers at Pier Law & Mediation will walk you through all available options for settlement and draw your attention to potential issues or opportunities you may not have considered.

Negotiating and drafting a Separation Agreement is not easy. Our Surrey and White Rock family lawyers at Pier Law & Mediation are available to expertly draft a Separation Agreement that is fair, accurately reflects your wishes and expectations, and is reliable.

On the flip side, if your spouse has presented you with a proposed Separation Agreement, do not sign it until you have received independent legal advice from one of the South Surrey and White Rock family lawyers at Pier Law & Mediation. We will give you unbiased and trustworthy advice and review with you your options.