What is a separation agreement?
A separation agreement is a type of contract signed when you and your spouse decide to separate. This contract is intended to lay out the terms of your separation in order to:
- avoid confusion and conflict,
- assist in financial planning, and
- make the separation process simpler and more straightforward.
Do we have to be legally married to create a separation agreement?
In Canada, regardless of whether you are married or in a common-law relationship, or whether you are a heterosexual or same-sex couple, a separation agreement is an option for you. It can be beneficial to you in your separation regardless of your official marital status. You may wish to check with a lawyer regarding the structure of your separation agreement, as there may be terms particular to your circumstances.
What is included in a separation agreement?
Every separation agreement typically has four main elements:
- The names of the parties to the agreement and the date the agreement is written up
- The background to or particulars of an agreement (the recitals)
- The terms of the arrangement (the covenants)
- The signature of both parties and witnesses to the agreement (the execution)
Topics often covered in separation agreements include:
- custody of children
- child and spousal support
- property division (and division of other family assets)
Why should I use a separation agreement?
As mentioned above, a separation agreement can help settle conflict. Having a document to refer back to after your separation can help eliminate confusion and conflict over the terms of the agreement in a way a verbal agreement cannot enforce as well. It can help clarify your finances following separation in a clear manner to reduce uncertainty.
If you and your spouse remain separated for one year and decide to divorce, the separation agreement serves as an excellent stepping stone in the divorce process. For one thing, after a year of separation, you will have a good idea of what worked in your agreement and what didn’t. You can modify your divorce agreement to make it more suited to your needs, which makes the odds of satisfaction with your divorce agreement significantly higher.
Furthermore, presenting a separation agreement to the judge during divorce proceedings will help to convince the judge that you have indeed been separated for at least one year, as deemed necessary by the Divorce Act.
What is needed to enforce a separation agreement?
If the other member of the agreement is not holding up his or her end of the agreement, don’t hesitate to have this addressed. You may be able to file your grievance with your local court registry and submit the separation agreement for legal enforcement of the provisions.
For more information on how to draft your own separation agreement in Canada, and the options available to you, see Separation Agreement
by lawyer David Greig at our Web store.
The book includes sample text and explanations of what you need to do and how you should do it.