Separation Agreement: What You Should Know

If you live in Canada and are considering separation, there are several things to know. First, there is no such thing as a formal “legal separation.” As soon as you live apart, you are considered to be legally separated. There is no time limit for being separated, and you will not be considered legally divorced unless you actively file and the divorce is granted. It is required that the couple be separated for a full year before you are permitted to file for divorce. The only exceptions are adultery or cruelty in the relationship. For further information on adultery or cruelty, read Grounds for Divorce in Canada, or visit our divorce blog.

What is a Separation Agreement?

In the divorce process, a separation agreement is a legally binding contract that covers the rights and responsibilities of both parties. While there is no requirement to file separation agreements in some provinces, many couples do. The documents outline a variety of topics, including debts, properties, spousal support, and child custody/support.

A separation agreement may be drafted by a lawyer or by the separating spouses themselves without legal counsel. In most cases, it is best to go through a non-binding negotiation or mediation process. This is where a neutral third party helps the parties reach a fair and equitable agreement. Agreements are written in a way that they are enforceable.

The courts will not accept terms that are clearly unreasonable, but they will otherwise be unlikely to change terms that have been agreed upon in writing.

Parts of a Separation Agreement

Each couple’s situation is undoubtedly different, but all Canadian separation agreements must contain specific information. These are the topics that you will see, though other items may be included depending on your financial situation.

Legal info: 

Each spouse’s full legal name 
Date of separation

Children’s Concerns (If Applicable):

Who has primary custody
Who children live with and what parenting time the other spouse has
How much money will go to child support and when
When child support will end 

Spousal Support: 

Whether the parties waives spousal support or not
If paid, by which partner, how much, when, and for how long
Criteria for ending spousal support 

Property Division: 

Full list of property and who gets which items 

Home Ownership (If Applicable):

Who will live in the house
Who pays the associated bills
If you sell your home, how will the proceeds be divided 

Debts: 

Full list of debts and who is responsible for which ones
Provision for debts incurred after separation but before divorce 

Pensions and Other Passive Income Streams Accumulated During Marriage:

How pensions and other passive income streams will be distributed
Who has access to make changes and transfers

A separation agreement is a legally binding document. It may form the basis of a later divorce settlement as well. It is very important to understand all of the relevant issues and how they affect both your life and those of your children.

Once you draft the separation agreement with the help of a neutral third party, make sure that you have that document reviewed by your lawyer before filing.

File for Legal Separation

If you require assistance with your separation agreement, contact us. Fairway Divorce Solutions can help draft a comprehensive agreement that will also keep your costs down.