• Is a Separation Agreement necessary?
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      Are we legally required to sign a Separation Agreement, or can we just divide our things and go our separate ways?

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        Sarah MillerLawyer

          A separation agreement is not required, whether you were in a common law relationship or married. However, we strongly encourage people to either sign a separation agreement or obtain a Final Order (by consent), which will outline the terms that you and your spouse agree to.

          If you have children and you want to file for an uncontested divorce (aka desk order divorce), it is important to ensure that child support is being paid pursuant to the Federal Child Support Guidelines. A judge will generally not grant a desk order divorce if there are outstanding issues regarding child support or arrears. If you need a divorce before these issues are resolved, you will likely need to appear before a judge to explain the circumstances. Parents are not at liberty to “waive” child support because it is considered the right of the child.

          Some people believe that getting a divorce means that everything is settled, but that isn’t always the case. You and your spouse will have up to two years from the date of divorce to seek orders regarding property and debt division or spousal support. After separation, either spouse can apply to equalize CPP credits without a court order or written agreement. (See What is CPP Splitting?)

          Separation Agreements

          Separation agreements are not as simple as many people think. We have seen many DIY separation agreements that were incomplete; inconsistent; contradictory; or included terms that the parties didn’t fully understand. When lawyers prepare separation agreements, we usually insist on an exchange of disclosure between the parties. Sometimes this disclosure is exchanged in a sworn Form F8 Financial Statement, which is a BC Supreme Court form.

          We have also seen many cases in which one party signed an unfair separation agreement without receiving independent legal advice and no longer agrees to the terms in the agreement. The courts will generally set aside a separation agreement if it is significantly unfair to a person and that person did not receive Independent legal advice. For that reason, both people should obtain legal advice and attach a Certificate of Independent Legal Advice to the agreement. (See What is a Certificate of Independent Legal Advice?)

          Signing a separation agreement before filing any court documents will also make your divorce cheaper. When you file a separation agreement with the court, you will pay a filing fee of up to $30 to file your Notice of Family Claim, whereas the filing fee for a Notice of Family Claim would otherwise be $200. (See What is a Notice of Family Claim?

          Consent Order

          Alternatively, you can obtain a Final Order by Consent rather than drafting a separation agreement. The benefit of a separation agreement is that a judge’s approval is not required. The benefit of a Consent Order is that neither party can later contest the terms on the grounds that they were unfair. If your spouse is willing to agree to terms that are very favourable to you and s/he is unwilling to provide confirmation that s/he has received independent legal advice, you should opt for a Consent Order. You or your lawyer will need to convince the judge that the order should be made. If the judge agrees to grant your Consent Order, it cannot be set aside in the future unless your spouse can prove a material non-disclosure. For example, if your spouse claims that you concealed an asset and wouldn’t have agreed to the Consent Order if s/he had known about it. Unlike a separation agreement, your spouse will not be able to have it set aside because it was significantly unfair and s/he didn’t receive legal advice.

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