Separation Agreement for Canadians

First, remember that a separation agreement does not end a marriage, only a divorce can do that. However, a separation agreement can still be a very important and powerful document. It can be used along with a divorce to set out all the details regarding the split. In that case the divorce ends the marriage but all the details are dealt with in the separation agreement.

Or, it can be used on its own so that a divorce can come later, or not at all. Some separated couples get back together or remain apart but never actually terminate their marriage with a divorce.

Sometimes a separation agreement is filed with the court when a divorce is processed. Other than that, it is only filed or registered with the court if one party breaks the agreement and the other needs to ask the court to enforce it. Filing it with the court does not make it legal, signing it does. But it has to be signed correctly.

In some provinces terms of the agreement are not enforceable unless each spouse receives independent legal advice (from a lawyer) prior to signing it or at least signs a waiver of independent legal advice which is witnessed by a lawyer. It is always a wise move to spend a little extra to have a lawyer go over your agreement with you before you sign it.

Make sure your spouse gets independent legal advice too. This can prevent him or her from later asking a court to overturn it on the grounds that he or she did not understand what he or she was signing.

The most important things to cover in your separation agreement are the details regarding the care and financial support of children, the issue of spousal support, and the division of your property and debt. Obviously of there are no children, low income and little property, this is easier than if all of these matters must be dealt with.

So the essential things to keep in mind are: 1. to understand what a separation agreement can and cannot do; 2. to make sure that it is signed correctly after receiving independent legal advice; and 3. to make sure it deals with the important issues of children, income and property.