The end of a marriage or common law relationship is never easy. There are many important decisions to be made, and many deeply personal issues to work through.
During this challenging time, a major source of stress is figuring out the divorce process, and whether you need a separation agreement before divorce. In British Columbia (BC), you are not legally required to have a separation agreement before filing for divorce, but having one can be highly beneficial.
Navigating the end of a relationship is a complex process, which is why we strongly recommend that you get legal help. The experienced family law lawyers at Onyx Law Group have a deep understanding of the divorce process and family law issues. Reach out to us today for a consultation with a dedicated family lawyer.
In today’s article, we’ll focus on separation agreements and whether a separation agreement is required before divorce in British Columbia. The majority of the information in this article applies equally to married and unmarried spouses (i.e., legally married spouses as well as partners in a common law relationship), but we’ve taken care to note differences where they exist.
What Is a Separation Agreement?
A separation agreement is a written, signed document that records how you have agreed to settle issues arising from your relationship. That includes financial issues (division of property and debt, spousal support, child support), and parenting arrangements (parenting time, decision-making responsibility). It’s open to both married and unmarried spouses to negotiate a separation agreement.
Do You Need a Separation Agreement Before Divorce in BC?
The short answer is that a separation agreement is not legally required to get divorced in British Columbia. The more nuanced answer is that the BC Supreme Court will want to see that you’ve resolved family law issues—especially when it comes to reasonable financial arrangements for your children—before it will grant a divorce order.
A legally binding separation agreement provides evidence that can be submitted to satisfy the court in the divorce process. In fact, if you and your spouse reach a negotiated agreement that settles all family law issues, you can use the uncontested divorce process, which is typically much faster and less expensive than the contested divorce process.
Why You Should Have a Separation Agreement
A well-drafted separation agreement protects legal rights and clarifies legal obligations. An agreement prepared with legal advice can settle existing issues and go a long way to preventing future disputes because expectations and responsibilities are spelled out in detail.
Flexibility and control are two major advantages of separation agreements. As long as you both agree, you can settle outstanding family law issues in any way you choose. For example, you can agree to opt out of the default equal sharing of property and debt under the BC Family Law Act, you can agree to waive any right to claim spousal support, and/or you can outline parenting rights and responsibilities in a way that works best for your children and your family.
What Happens if You Don’t Have a Separation Agreement?
The main alternative to negotiating a separation agreement is bringing a family court case asking a judge to resolve matters in dispute for you. Unresolved issues such as property division, child custody, and support issues will be decided by a judge based on BC case law and family law. The outcome of your case may not line up with your preferences.
There are other potential downsides if you don’t have a separation agreement, including:
- Increased Legal Costs and Delays – Without an agreement, couples may face higher legal fees due to the need for court hearings and litigation. The divorce process may take longer, causing additional stress and delay for both parties.
- Uncertainty Over Financial and Property Matters – Without a clear agreement on how to divide assets and debts, disputes may arise, leading to complicated legal battles. Couples might not know how to fairly distribute property, which could result in an unfair outcome.
- Unclear Parenting and Child Support Arrangements – Lack of a separation agreement means there may be no clear plan for the care, custody, and support of children. Parents might have differing views on how to handle their children’s needs or schedule, leading to legal battles.
Without a legally binding written separation agreement, one party may not follow through on verbally agreed-upon terms, such as support payments or asset transfers. Enforcement through the court can be time-consuming and costly.
Do You Need a Separation Agreement to Legally End Your Relationship?
A separation agreement is not required to legally end a marriage or a common law relationship. There is no such thing as “legal separation” in British Columbia and there is no document for former partners to sign to make themselves legally separated.
Instead, separation occurs when one or both spouses decide the relationship is over, communicate that decision to the other spouse, and then behave as though the relationship is over. Factors such as not sleeping in the same room, not socializing together, and stopping sharing bank accounts are some of the indicators that a couple has separated.
You don’t have to live in separate homes to be separated, but if you continue living under the same roof after separation, be very cautious about untangling your financial, romantic, and social affairs. Failure to do so can lead to disputes about the true separation date, which may result in legal battles about what qualifies as family property and how much family property and debt are worth.
Date of Separation and Divorce
An uncertain separation date can also delay your eligibility to get a divorce order if you’re legally married. Divorce in Canada is a “no-fault” system, which means neither spouse needs to prove fault. Instead, you must demonstrate that your marriage has broken down. There are only three grounds in the Divorce Act for establishing marriage breakdown: one year of separation, adultery, and mental or physical cruelty.
Even if your spouse committed adultery or was abusive, it’s very rarely recommended to proceed using either of those grounds. Adultery and cruelty must be proven by evidence in court. To avoid the necessity and expense of a trial, most separating spouses choose to live apart for a year and apply for divorce on that basis.
When relying on one year of living separate and apart as the grounds for your divorce, you can start your divorce application in British Columbia any time after you separate, but the Supreme Court will not grant a divorce order until you and your spouse have been separated for at least one year.
Do You Need a Divorce Order to End Your Relationship?
This is one of the areas where there is a distinction between married and unmarried spouses.
People who have lived together in a marriage-like relationship for a continuous period of more than two years are considered “spouses” of each other under the BC Family Law Act (see the definition of “spouse” in section 3 of the Family Law Act). Common law spouses have the same rights and obligations on separation as legally married spouses, including the right to equal sharing of family property and debt. The difference is that spouses who lived in a marriage-like relationship do not need a divorce order to formally end their relationship. All they need to do is separate.
The situation is different for married spouses. The only way to legally end a marriage is by getting a divorce order. In BC, only the Supreme Court can grant a divorce order. So, if you want to officially dissolve your marriage you must bring a court application. You need a divorce order if you want to remarry.
It’s worth noting that some legally married spouses remain separated indefinitely and never actually apply for a divorce order. It’s still strongly recommended that you resolve property division, support issues, and parenting issues as soon as possible after separation so that you don’t lose the opportunity to do so or get stuck on the hook for your ex’s debt, for example.
Do You Need a Separation Agreement in a Marriage-Like Relationship?
As mentioned, common law spouses in BC have the same rights and obligations as married couples, even if they never had a wedding ceremony. BC couples automatically take on the status of common law spouses after two years of living together in a marriage-like relationship, unless they actively opt out of the Family Law Act regime by entering a cohabitation agreement.
If your common law marriage is ending and you don’t have a cohabitation agreement in place, a separation agreement or court order will be needed to resolve issues arising from your relationship. A separation agreement negotiated out-of-court offers the same advantages discussed above to common law couples, just like married couples.
What Happens if One Spouse Refuses to Sign a Separation Agreement?
If you don’t have a separation agreement in place but have family law issues that need to be sorted out, you’ll need to explore other options. Negotiation with the help of lawyers, mediation and other alternative dispute resolution methods such as the collaborative divorce process can be highly effective.
Another option is to go to court. When you bring your family court application, you ask the judge to resolve outstanding issues (e.g. ,property issues, financial issues, parenting issues), and if you are legally married, you can also ask the judge to grant a divorce order within the case. See here for a step-by-step guide to the BC Supreme Court divorce process.
Starting a family court case doesn’t mean you have to go to trial. Many separated spouses start a BC court case because they can’t agree on the issues but end up reaching an agreement well before trial. You and your spouse can make an agreement at any time—before or after family court proceedings are commenced—either by negotiation, mediation, or other alternative dispute resolution options. Once all outstanding issues are settled, the BC Supreme Court can grant the divorce order ending your marriage, without the need for a trial.
How to Draft a Separation Agreement in BC
A separation agreement can have a long-lasting impact on your legal rights and responsibilities. You can prepare your own agreement, but you may miss vital issues or receive less than your fair share of assets.
The best way to draft a separation agreement is with legal help. Protect yourself by consulting with a family lawyer before you agree to anything. Your lawyer can ensure you understand the applicable laws and that you have received full financial disclosure, both of which are essential to the question of whether a proposed agreement is fair.
If your separation agreement is not properly prepared or fairly negotiated with full financial disclosure and independent legal advice before it is signed, it may not be enforceable and can be set aside by the courts.
Looking for Legal Assistance from a Family Lawyer?
Separation and divorce can be extremely difficult to navigate on your own. Conflict and uncertainty will arise. Without an experienced family lawyer on your side, you may not be able to protect yourself and your family.
Whether you are just starting the separation process or are in the middle of a difficult dispute, Onyx Law Group’s experienced lawyers are here to help. We use our detailed knowledge and years of experience to find creative approaches to difficult legal situations. From our offices in Vancouver and New Westminster, our team of experienced lawyers works with clients from across the Lower Mainland, and the rest of British Columbia, to navigate even the trickiest personal disputes.