If you divorce or separate from your spouse, you'll have a lot of things to sort out. For example:
- How will you take care of the children?
- How will you divide property and debt?
- Will one of you pay child support?
- Will one of you pay spousal support?
BC family law encourages couples to make agreements to solve family law issues without going to court. If you've separated, it can be hard to talk to each other, but it's worth trying to sort things out together.
There are people who can help you and your spouse work together to make an agreement. Mediators, lawyers, and other people who can help you work things out have to tell you about the ways you can solve your problems without going to court.
If you go to court, it can make things worse because you’ll likely be trying to get what you want and not working with the other person to sort things out. It also takes up a lot of time and can cost a lot of money.
How do you write a separation agreement?
You and your spouse can write the agreement yourselves or you can ask a lawyer, family justice counsellor, or private mediator to help you.
If you decide to write your own agreement, read as much as you can about separation agreements before you start to write it.
Write your own separation agreement can help you write a separation agreement that's legally binding (as enforceable as a court order).
Here are some places to find out more online:
- Clicklaw has lots of useful resources:
- click Family law and then divorce & separation for links to general information about separating from your spouse, or
- type "separation agreement" in the search box to find information about separation agreements.
- JP Boyd on Family Law is a Clicklaw Wikibook. Family Law Agreements has lots of helpful information about separating.
- Living Together or Living Apart: Common-law relationships, marriage, separation, and divorce (see the chapter called Living Apart — Separation) will give you ideas about what to put into your agreement.
- Separation Agreement, a kit by Self-Counsel Press, takes you through how to write a separation agreement. You can pay to download it as an e-book or order a paper copy. It’s also available from some public libraries and in many bookstores. (Make sure you get the current edition.) It has examples of separation agreements and blank forms that you can use, including some you can fill out on a computer.
If you decide to use a lawyer, it's worth calling a few lawyers to ask how much they charge to write a separation agreement:
- Some lawyers charge by the hour.
- Some lawyers now offer unbundled legal services, which means you can pay them to help you with certain tasks but not your whole case.
The cost will also depend on how much you and the other person have already agreed to.
If you don’t use a lawyer, you and your spouse should get legal advice before you sign a separation agreement to make sure the terms in it are fair to both of you.
What if you made an agreement when you lived together?
If you and your spouse made an agreement when you were living together (also called a cohabitation agreement), you can use it for parts of a new agreement.
You’ll need to review what you agreed on. You likely agreed on how you’d divide up your property or debt, for example, but you might need to change any parts that no longer apply or seem really unfair now. You might need to get legal advice.
If you have children, you'll also have to add parenting and child support arrangements to the new agreement.
What if you have an informal agreement?
When people first separate they often don't have any sort of formal agreement yet, but they might have informal agreements about certain things. This means you've settled into a routine about how to manage things, but you haven't written any of it down.
For example, if you have children, you might find you have informal arrangements for your children's routine, such as agreeing about who picks them up from school, but you don't write them down.
If you’ve been using your informal agreement for some time and either you or your spouse want to change it, you both have to agree about the change. If you can't agree, think about trying mediation to help you reach an agreement. If nothing else works, you can apply for a court order. The courts will expect you to:
- try to be reasonable with each other, and
- act in the best interests of the children.
Can you change an agreement?
You and your spouse can agree to change your agreement whenever you want to. See How do you change an agreement? to find out more about how to do this.
If you're not sure if you should change your agreement, you can ask for help.
If you can’t agree about changing the agreement and you’ve tried mediation, you might have to go court. The court can set aside (cancel) part of it, or even all of it, and replace it with a court order. But it needs to look at certain things before it can do this.
The chart below shows you what the court thinks about before it decides if any part of your agreement can be set aside. Think about these things when you're thinking about changing an agreement.
|Type of agreement||What the court considers|
|Parenting arrangements such as decision making, parenting responsibilities, guardianship, parenting, or contact with a child||Is the agreement in the best interests of the child?|
|Child support||After the court looks at section 150 of the Family Law Act, would it make the same order about child support as the one in your agreement?|
Is the agreement unfair? For example, did one spouse not share (either on purpose or by accident) some financial information, or did they take advantage of the other spouse in some way? Or did one spouse not understand what they were signing?
Was the agreement itself "significantly unfair" according to section 164(5) of the Family Law Act?
Was the agreement made unfairly? For example, did one spouse not share (either on purpose or by accident) some financial information, or did they take advantage of the other spouse in some way? Or did one spouse not understand what they were signing?
ORWas the agreement itself "significantly unfair" according to section 93(5) of the Family Law Act?
How do you finalize the agreement?
Before you sign your agreement:
- read it carefully,
- take some time to think about it, and
- ask a lawyer to look at it.
You and your spouse each need to have your own lawyer because lawyers can't act for both people in a separation or divorce. That would be a conflict of interest. What is independent legal advice? can tell you more about this.
When everyone agrees that the terms of the agreement are fair, print three copies of it.
1. You and your spouse sign and date all the copies to show you agree with what the agreement says.
2. Ask someone older than 19 to:
- witness your signatures, and
- sign and date each copy.
The same person can witness both you and your spouse signing and dating it, but you can each ask someone different if you prefer.
3. You and your spouse keep one copy each. Keep the third one in a safe place in case you decide to file the agreement later.
The agreement is binding (you both have to do what you've agreed to) once you and your witness have signed it.
- you're not happy with it, or
- you feel you've been pushed into signing it.
Agreements and the law
If you make your own agreement:
- You and your spouse have to give each other full and true information whether or not you go to court. When you're making your agreement, you have to:
- share all the details about your issue, including any financial information, and
- be completely honest about everything with each other.
- When you're deciding how to take care of the children, you can only think about the best interests of the children.
- Any agreement about child support usually has to follow the child support guidelines.
- You don't need to file the agreement with the court unless you want to register with the Family Maintenance Enforcement Program (FMEP). But if you do, you can ask the court later to enforce it as if it were a court order if someone isn’t doing what they agreed to do
- To file your agreement, take an original version of your signed agreement to your local Provincial Court or Supreme Court registry and ask to have it filed.
- The courts can set aside (cancel) an agreement that’s really unfair to one of the parties and replace all or part of it with a court order.
- You can also apply to court to get a consent order (Supreme Court Form F33 or Provincial Court Form 17) based on your agreement. The consent order might not have as much detail as your agreement does. A family justice counsellor might be able to help you with you fill out the consent order form.
Niki learns about making a separation agreement and finds online help, in our illustrated short story Separation: put it in writing.
Splitting up is hard and it's never fun. Go easy on yourself.