An Introduction to Separation Agreements
A separation agreement is a freely negotiated and agreed upon contract between spouses which deals with some or all of the outstanding issues that arise upon a breakdown in the relationship. It can allow for the avoidance of court action, and all of the time and costs that are associated with such a proceeding.
A separation agreement is not a divorce, and spouses will still require additional steps to be divorced. Nor would the date a separation agreement has been signed necessarily be the legal date of separation. The date of separation is based on a number of other contextual factors, which the date of signing the separation agreement may not meet.
In contrast with its name, a separation agreement can be made:
- While the parties are considering separation
- While the parties are in the process of separating/divorcing
- While the spouses are living comfortably in a marriage or common-law relationship, or even
- before the parties have married.
Having a separation agreement while a relationship is still strong and the parties are on good terms can allow spouses to deal with specific issues with less emotional interference.
Parties should bear in mind that there are times when a separation agreement can be invalidated, specifically if one of the parties is found to have signed it under duress. An experienced family lawyer is able to identify and mitigate these problems, and it is legal advice should be obtained as opposed to finding a separation agreement template online.
Broad categorical concepts that a separation agreement deal with are:
- Division of Property
- Spousal Support
- Child Support
- Access to Children
- Parenting arrangements for the children
- Decision-making for the children
A separation agreement can be as broad or specific as the spouses would like. Each relationship is unique, and each separation agreement reflects the individual needs of the spouses who are signing and agreeing to the relationship.
A separation agreement need not deal with every issue that a couple faces upon breakdown of their relationship. If further negotiation is needed on a certain subject a second separation agreement can be created to complement the first. If there is an impasse due to an irreconcilable disagreement, the spouses can turn to the court for a decision on that issue, while the separation agreement outlines the terms for other issues. In this way, the separation agreement can be used to limit costs in courts if court action is necessary.
The Family Law Act (the governing legislation for separation agreements) covers a wide and broad spectrum of issues. The legislation allows for parties, through a separation agreement, to negotiate and settle the following issues:
- support obligations
- the rights of parents when it comes to custody and access
- parent’s right to dictate the education of the children
- division and ownership of property, and
- any other matter in the settlement of their affairs.
Advantages and disadvantages of a Separation Agreement
| Advantages | Disadvantages |
| It allows for a couple to set the terms of their separation and divorce with certainty. Each party knows what they are agreeing to beforehand and accept the terms willingly. | If drafted without appropriate legal advice, there is a risk that the parties will try to includeinvalid terms such as contracting out of child support. Child support is the right of the child, and spouses cannot willingly dispense with this duty (see our blog post regarding Child Support). Invalid terms may lead to an entire separation agreement being invalidated. |
| It can avoid potential future disputes as long as the Agreement is properly and unambiguously drafted. | If improperly drafted without legal advice, conflicting provisions can render certain provisions or the entire agreement to be unenforceable and thus increase the length and cost of the separation. |
| They generally include a specific dispute resolution mechanism that parties can follow for greater clarity if a dispute does arise. | |
| Parties are generally obligated to provide full financial disclosure. Without this, the Family Law Act allows a court to have the discretion to dismiss the separation agreement, since parties were not able to make a fully reasoned decision. | |
| There is an upfront cost to obtaining a properly drafted Separation Agreement. However, it should be noted that the cost of not having one is likely to be disproportionately larger if the separation becomes contentious. | |
| If there is a power imbalance or even abuse in the relationship, a separation agreement may not be the ideal route to take. However, if legal advice is obtained by both parties, this can mitigate the effects of any pressure or duress being experienced by a spouse. |
The “disadvantages” noted above primarily arise where the parties have an improperly drafted Separation Agreement that is not tailored to their needs (i.e. they googled a template for use!). Retaining experienced family lawyers like ourselves to draft and explain your separation agreement can aid in keeping your separation amicable as well as avoid protracted legal disputes in the future.
If you are considering separating from your partner, contact us today for a free consultation to discuss your options. You can call us at 905-366-0202 or alternatively you can reach us through our website here.
