Separation agreements are legal contracts created by two spouses, after separation. Separation agreements set out each spouse’s rights and obligations on issues such as parenting, finances, property, and support. Both married spouses and common-law spouses can enter into a separation agreement.
- Separation Agreements are Faster and More Economical Than Going to Court
Traditional court litigation can be time-consuming and expensive. It can take years to reach a resolution in court. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since the beginning of the COVID-19 pandemic, the courts have an even larger backlog. The court process is also expensive, and the costs are unpredictable. When negotiating a separation agreement outside of court, parties get to decide the pace and are in more control of the costs.
- Issues to Address in a Separation Agreement
Separating spouses get to choose and decide on the contents of their agreement and make important decisions regarding the breakdown of their relationship. In court, a judge makes these important decisions about children and dividing assets.
Separation agreements can address the following issues:
- Decision-making responsibility of the children
- Where the children will reside
- Parenting time
- The matrimonial home
- Division of assets, property, and debts
- Child support
- Spousal support
- Medical and dental benefits
- Canada Pension Plan and Old Age Security benefits
Separation agreements should also include a dispute resolution clause which explains how potential future disagreements will be addressed. If separating spouses cannot agree on the terms of their agreement, they can engage in mediation or collaborative family law to assist them in drafting an agreement that is suitable for everyone.
- Legal Requirements for a Separation Agreement
The Family Law Act requires that a separation agreement must be made in writing, signed by the parties, and witnessed. The agreement also needs to be dated. Parties to an agreement should also share complete and honest financial information, including information about all income, property, assets, and debts.
A court can rule that a separation agreement is not enforceable if a party failed to disclose to the other significant assets, or significant debts or other liabilities, or if a party did not understand the nature or consequences of the domestic contract. Courts can also set aside a separation agreement if it is otherwise not in accordance with the law. For example, if there is a mistake in the agreement, the agreement is unconscionable or if one party unduly influences the other to enter into the agreement.
While not required by the Family Law Act, it is essential both parties receive legal advice from different lawyers, or there will be an increased risk of a court ruling that the agreement is unenforceable. Sometimes this is called Independent Legal Advice (ILA). A Certificate of Independent Legal Advice should be attached to the separation agreement as evidence that the ILA was received.
At Gilbertson Davis LLP, our family law counsel can assist with your separation agreement inquiries. We offer advice to and represent clients on a full range family law matters, including divorce, separation, child support, spousal support, child custody and access, division of property, and domestic contracts. Our mission is to provide creative, sensible, cost-effective, and long-term resolutions to family law disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
Related Practice Areas
Please see our related family law webpages on Separation and Divorce, Child Custody and Access, Spousal Support, Child Support, Division of Property, Cohabitation Agreements, Collaborative Family Law, Mobility Issues, Marriage Contracts, Urgent Motions, Ex parte Motions, Family Law Act Elections, Rights of the Surviving Spouse, Interjurisdictional Disputes, Alternative Dispute Resolution (ADR), Adoption, Variations, International Child Abduction, Preservation Orders, Capacity to Marry, Gift or Loan, Family Business Disputes, and Predatory Marriage.
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