If you divorce or separate from your spouse or common-law partner, you'll have a lot of things to sort out.
Here are some things you might need to think about:
- 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?
Most couples agree about these things 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 yourselves.
If you're arguing with each other, going to court can make things worse because it's about one person winning and the other person losing. It also costs a lot of money and takes up a lot of time.
There are people who can help you and your spouse agree about things.
If you and your spouse can work together, you can make an agreement. There are some things to think about when you do this.
Agreements and the law
BC family law encourages couples to use agreements to solve family law issues. If you do this, there are some important rules to remember:
- 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, or even if you don't, you and your spouse have to give each other full and true information. This means you have to be completely honest about everything with each other when you're making your agreement.
- When you're deciding how to take care of the children, the best interests of the children are the only thing to think about.
- You don't need to file your agreement with the court, but if you do, most of it will be enforceable, just like a court order.
- Courts will respect fair agreements, but they can set aside (cancel) an agreement if it's really unfair and replace all or part of it with a court order.
- Don't sign an agreement if you're not happy with it. Get legal advice before you sign anything, especially if you think it's unfair.
What if you don't have a formal agreement?
Many people who separate don't have any sort of formal agreement, especially when they first separate. But you 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 start to make informal arrangements for your children's routine (for example, you agree about who picks them up from school but you don't write it down).
If you or your spouse want to change this informal agreement, the other person has to agree. If you can't agree between yourselves, think about trying mediation to help you reach an agreement. If nothing else works, you can apply for a court order.
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 use a lawyer, ask them how much they'll charge:
- 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 agreed to already.
It's worth calling a few lawyers to see what the cost would be for a separation agreement. While it might seem like a lot, a separation agreement's a very important document that affects your future.
If you decide to write your own agreement, read as much as you can about separation agreements before you start to write one.
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 more ideas for where to find out more online:
- Clicklaw. This website has lots of useful resources.
- Click Family law and then divorce and separation for links to general information about separating from your spouse, or
- Type "separation agreements" in the search box to find information about separation agreements.
- JP Boyd on Family Law. This 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 Chapter 3 on separation) will give you ideas about what to put into your agreement.
- MyLawBC. This website contains question and answer pathways that take you to personalized action plans for dealing with separation, getting court orders, or dealing with family law forms. Make a Separation Plan also contains links to online tools that can help you and your spouse create your own separation agreement online without meeting face-to-face.
There's also a kit called Separation Agreement by Self-Counsel Press. It takes you through how to write a separation agreement. You can pay to download it as an e-book or order a paper copy from the publisher's website. You'll also see it in many bookstores. (Make sure it's the current edition. As of January 2019, that's the 4th edition.) It has examples of separation agreements and blank forms that you can use, including some you can fill out on a computer.
Before you sign a separation agreement, you and your spouse should get legal advice to make sure it's 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 your new agreement. But you'll need to change some parts. For example, you'll have to add:
- your parenting plan, and
- what you've agreed about child support to the new agreement.
How do you finalize the agreement?
Before you sign your agreement:
- read it carefully and 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 is happy that the agreement is fair, you and your spouse sign it. The agreement is binding (you both have to do what you've agreed to) once you've signed it.
If the agreement is about property or spousal support, at least one other adult must witness you signing and dating it. The same person can witness both you and your spouse signing and dating it. After you've signed and dated the agreement, the witness signs it and prints their name and contact information under their signature.
Don't sign an agreement if:
- you're not happy with it, or
- you feel you've been pushed into signing it.
Should you file the agreement with the court?
The Provincial Court and BC Supreme Court will enforce the parts of an agreement about parenting and support.
If one of you doesn't do what it says in the agreement about parenting or support, the other can get the court to enforce the agreement.
The court can only enforce an agreement if you've filed it with the court. You can file the agreement with the court at any time, but it's a good idea to file it soon after you've signed it. That will give you one less thing to worry about if you need the court to enforce it.
What if you want to get divorced?
If you have a separation agreement and want to get divorced, you can apply for an uncontested divorce.
If you don’t have dependent children, you won't have to include your agreement with your application for a divorce.
If you have dependent children, you'll have to attach your agreement to one of the affidavits that you file with the court as part of your divorce application.
See Do your own uncontested divorce to find out more about getting a divorce.
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.
The court usually respects agreements (they'll treat your agreement like a legal document).
If you want to change the agreement and your spouse doesn't, you might be able to get your spouse to agree to the changes through negotiation or mediation.
But if you have to go court, the court can't change the agreement. It can only set aside (cancel) part of the agreement, 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||Test|
|Guardianship, parental responsibilities, and parenting time||Is the agreement in the best interests of the child?|
|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?
ORWas 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 enforce an agreement?
If you've filed the agreement, the court will enforce the parts that have to do with parenting and child and spousal support, just as if they were court orders.
If you register your agreement with the Family Maintenance Enforcement Program, they'll enforce the child and spousal support parts of the agreement.
Should you get a consent order instead?
When you apply for a consent order, you're asking the court to make an order based on what you and your spouse have agreed to.
You have more choice about what you put in an agreement than in a court order:
- you can add things a judge wouldn't put in an order, and
- you can have as many details as you like about everything.
Agreements are also easier to change if you and your spouse both agree about the changes.
A court order might be better for you if:
- you think the other person might not do what they've said they'll do, or
- you don't want it to be easy to make changes.
You usually don't need to be in court for the judge to make a consent order if:
- your paperwork has been done properly, and
- the judge is happy with your plans for the children.