Critical legal issues must be settled when married people or common-law spouses separate. A common way to resolve these issues is by signing a separation agreement. However, signing a separation agreement may not stop a party from starting a court action. In fact, sections 44, 93, and 164 of British Columbia’s Family Law Act allow a judge to set aside a separation agreement. If that’s the case, are separation agreements legally binding? How are you supposed to rely on a separation agreement if a judge can set aside the agreement later?
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Understanding Separation Agreements
A separation agreement is a document that outlines the terms of a couple’s separation, such as the division of assets, debt responsibility, spousal support, parenting arrangements, and child support. A separation agreement usually states how the couple has agreed to settle each issue. A good separation agreement will also be a roadmap for how the couple will proceed, e.g., dividing and closing joint bank accounts, transferring investments, selling real estate, how and when support payments must be paid, etc. If the couple has children, the separation agreement should describe each parent’s decision-making responsibilities, the parenting time schedule, and other terms specific to the family.
Separation Agreement: A Roadmap for Your Family
“A separation agreement is more than a contract; it is a roadmap for a family to move forward. The better the roadmap, the better your chances of getting where you need to be. ” – Brennan J. Clarkson, Separation Agreement Lawyer
For many in British Columbia facing separation, creating a legally binding separation agreement is the first step towards a new beginning. It provides a structured framework within which both parties can start to rebuild their lives, offering peace of mind that financial matters and parental responsibilities are settled.
With a legally binding separation agreement in place, couples can begin to move forward. It’s not just about dividing assets or determining schedules; it’s about laying the groundwork for the next chapters of their lives. A solid agreement can provide stability and peace of mind during a time of significant change.
Since the Separation Agreement is so important, let’s look at the key components and what makes a separation agreement stronger vs weaker.
Key Components of a Separation Agreement
- Property Division: Who gets what, from real estate to investments.
- Debt Responsibility: How existing debts are divided and managed.
- Spousal Support: The details of any agreed-upon financial support from one spouse to another.
- Child Support: The details of any agreed-upon financial support for the child or children.
- Parenting Arrangements: Parental responsibilities/decision-making, parenting time, and other terms.
The Legality of Separation Agreements
So, are separation agreements legally binding? The short answer is yes… British Columbia’s Family Law Act and Canada’s Divorce Act allow a couple to enter into a binding separation agreement… but there are two important caveats.
First, a separation agreement must be crafted carefully and meet specific legal standards to be enforceable under BC law. It is essential that the terms of your separation agreement are written correctly, or the terms might not be legally enforceable.
Many people come to me with a separation agreement written by their spouse, without a lawyer, or made with a template downloaded from the internet. There can be many, many problems with those agreements. For example, the separation agreement may have been made with a template for a different province (or country) that uses other words to talk about property division, parenting arrangements, etc. As another example, I have seen terms about child support that do not comply with our child support law (meaning the couple will only be able to get a divorce once they have fixed that problem).
Just imagine doing all the hard work of negotiating an agreement with your ex, going back and forth over days (or months!) arguing about how to divide property… who will be responsible for the family’s debt… what are the parenting arrangements going to be… grieving the end of your relationship… and finally, compromising on an agreement.
Imagine going through that emotional roller coaster to discover that the agreement you wrote (or downloaded) has to be rewritten. Now, imagine that your ex decides to take the opportunity to renegotiate the deal. Not good. Just get a lawyer to draft it from the start.
The second significant caveat is that, in some situations, the court can set aside some parts of a separation agreement. So, let’s discuss why that happens and how you can prevent it from happening.
Why Some Separation Agreements Are Set Aside
Even if an agreement is legally valid, some separation agreements are vulnerable to being set aside. A party to a separation agreement has the right to go to court and ask a judge to set aside or replace the agreement (or part of the agreement). You can never predict with 100% certainty what a judge will do. Still, some separation agreements are more likely to be set aside by a judge. You can think of some separation agreements being stronger or weaker than others.
Reasons that a separation agreement can be “weaker” or more vulnerable include the following:
- Lack of full financial disclosure by one or both parties.
- The agreement was signed under pressure or without a clear understanding.
- Terms that do not clearly settle both present and future claims.
- Significantly unfair terms. Note that I said “significantly”. The standard is “significantly unfair,” not “unfair.” Parties can agree on a deal that gives a party a different amount than that party would receive if the case went to court.
What Makes a Strong Separation Agreement?
Making a strong separation agreement is as much about the process as the terms. Here are some steps and considerations to ensure your agreement stands the test of time.
- Provide Full Financial Disclosure. Each party must fully disclose their financial situation. This includes all assets, debts, income, and expenses. It’s a cornerstone of fairness and legality in separation agreements.
- Ensure the Wording Provides You As Much Protection and Finality as Possible. The wording should be clear and precise and follow British Columbia’s law. Vague or ambiguous wording can lead to disputes and legal challenges. Do not just “fill in the blank” using an online template or try to write your own. A lawyer will know how to draft the agreement’s wording to make it as strong as possible for you. The exact wording depends entirely on your situation and what you are trying to accomplish.
- Don’t Use Threats or Pressure to Make the Other Person Sign the Separation Agreement. Enough said.
- An Opportunity to Evaluate the Agreement (And Get Independent Legal Advice): Both sides should have a fair chance to evaluate the agreement and decide whether they want to sign it. If a party wants independent legal advice, they should have the opportunity to talk to a lawyer (even if they decide not to do so).
- Consider Future Changes in Circumstances: Consider potential future changes in circumstances and include provisions for revisiting the agreement if significant changes occur.
- Comply with Legal Requirements: Ensure the agreement complies with the Family Law Act, the Divorce Act of Canada, the Child Support Guidelines, etc. Laws change over time, so compliance with the current legislation is crucial.
- Do Not Make a “One-Sided” Agreement. The terms of the agreement should not disproportionately favour one side. This does not mean that the separation agreement needs to be perfectly balanced. Most separation agreements are compromises. Parties have a lot of freedom to negotiate a deal they are willing to live with.
The Role of a Lawyer in Creating or Reviewing a Separation Agreement
While it’s possible to draft a separation agreement without legal help, the involvement of a lawyer can be invaluable. A lawyer can:
- Ensure the agreement is legally sound, enforceable, and as strong as possible.
- Provide advice tailored to your specific situation, especially concerning complex assets or custody arrangements.
- Help negotiate terms that are fair and in the best interest of any children involved.
Navigating Changes and Challenges
As life progresses, the circumstances under which your separation agreement was initially drafted may change. Recognizing and adapting to these changes is essential for maintaining the agreement’s relevance and enforceability.
Anticipate Life Changes in Your Separation Agreement
Changes in income, relocation, or alterations in the needs of children can necessitate a review and potential amendment of the separation agreement. A good separation agreement will anticipate life changes and explain what should happen if/when those changes occur. Being proactive about these changes can prevent conflicts and ensure the separation agreement continues serving its intended purpose.
Anticipate Disputes in Your Separation Agreement
A good agreement should anticipate future disputes and explain how the parties will deal with those disputes. For example, consider a separation agreement that states that child support will be reviewed when the children attend university. The agreement might have a term stating that if the parties cannot agree on the new amount of child support, they will proceed to mediation before going to court.
The “mechanism” for resolving disputes will depend on the case.
Mediation can be valuable because it can resolve disputes quicker and cheaper than court. Even more critical, mediation is a process that helps parties reach an agreement. It gets both sides on the same page instead of having a judge impose a decision that the judge thinks is right.
On the other hand, there are situations where mediation would not be appropriate. It depends on the amount involved, the cost of mediation, the dynamics between the parties, family violence, etc.
Enforcing the Separation Agreement
If your ex is not following the terms of your Separation Agreement, you may need to enforce it. In the case of child support or spousal support, you may need to file the agreement at court. You can file an agreement with either the Provincial Court of British Columbia or the Supreme Court of British Columbia and then register it with the BC Family Maintenance Agency. Suppose other kinds of terms are being disobeyed. In that case, enforcing the separation agreement may involve court action against the party breaching the separation agreement.
Regardless of what type of terms are being disobeyed, you will want to take the following steps.
Steps for Enforcement
- Register the agreement with the BC Family Maintenance Agency if the breach involves spousal support or child support.
- Documenting Non-Compliance: Keeping detailed records of any breaches of the agreement.
- Seek Legal Advice: Consult a lawyer to understand your options and the best course of action before taking action. Don’t breach the agreement because the other side is breaching it (e.g., withholding a child because the other parent is not paying child support).
- Court Action: If necessary, apply to court or start a court action to enforce the agreement.
Emotional and Psychological Considerations for the Separation Agreement
A separation agreement is not only a legal document but also a framework for navigating a separation’s emotional and psychological aspects. It can provide both parties a sense of closure and clarity, allowing them to move forward with their lives with a clear understanding of their rights and responsibilities.
When a party asks for the terms of a separation agreement to be set aside, it is like ripping open an old wound. You can end up fighting over the same issues that ended your relationship all over again. It is critical to ensure your separation agreement is as strong as possible.
Supporting Children Through the Process
For families with children, the agreement plays a critical role in ensuring that the children’s needs are prioritized. It can outline parenting arrangements, support payments, and other provisions to minimize the impact of the separation on the children’s well-being.
A Separation Agreement is the Foundation for a New Beginning
“A separation agreement is not the end of a relationship but a new beginning on different terms. It’s about finding a way forward that respects the needs and rights of everyone involved.” — Brennan J. Clarkson, Separation Agreement Lawyer
Separation agreements in British Columbia are legally binding and serve as the cornerstone for couples navigating the end of their relationship.
Some separation agreements are stronger than others. A strong separation agreement is a powerful tool for moving forward, providing a clear framework for a family’s future interactions and responsibilities. A weak separation agreement will hold you back (or be a ticking time bomb.
Keys to Success
- Full and honest financial disclosure
- Strongly worded agreement
- Opportunity to seek independent legal advice
- Terms that are not “significantly unfair”
- Preparing for future changes
Remember, the journey through separation and beyond is not just about legalities; it’s about laying the groundwork for a future that works for you and your family. With the proper support and guidance, a separation agreement can be a pivotal step in this journey, offering peace, clarity, and a path toward healing and growth.