What is a Legal Separation?
In British Columbia there is no such thing as a “legal separation”: you can separate at any time. However, having a “separation agreement” is a legal way to settle assets quicker.
What is a Separation Agreement?
A separation agreement is a signed agreement that outlines how former spouses wish to settle the various issues resulting from their separation.
These issues typically include:
- Division of family assets and debts
- Who will reside or keep the family home
- Spousal support
- Child support
- Custody and guardianship of the children
A separation agreement cannot include an order for divorce, as that must be made by a judge in Supreme Court.
Why do I need a separation agreement?
If you and your former spouse are able to come to an agreement on the issues listed above, drafting a separation agreement is a good idea.
Separation agreements are legally binding documents, that can be filed with, and enforced by the court. They are much cheaper and quicker than going to court. You also have more control over the outcome.
Should A lawyer prepare my separation agreement?
As separation agreements are legally binding documents, they have a long-lasting impact on your legal rights and obligations. Therefore, it may be worthwhile to have a lawyer prepare your separation agreement. A lawyer can help protect your rights and ensure that you understand the implications of any agreement.
Can a separation agreement be thrown out?
Having a lawyer prepare the agreement will help to ensure that the agreement is not vulnerable to being overturned in court.
However, the Family Law Act specifies that upon application of one of the spouses, a court may set aside a domestic contract in one of three instances:
- If a party failed to disclose to the other party significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
- If a party did not understand the nature or consequences of the domestic contract; or
- If the contract is otherwise not in accordance with the law for example: if the contract is unconscionable or there has been a mistake or undue influence.