Separation Agreements

When are spouses considered separated?

In BC, you and your married or common-law spouse become separated as soon as you start living apart, or as soon as your relationship is no longer “marriage-like” in terms of several factors including, for example, where your sleep, how you conduct your finances, and how you hold yourself to the public. You are not required by law to get your spouse’s permission to separate, nor do you need to sign a document or go to court. In some instances, couples choose to live in the same residence (often for the children) and they will still be deemed separated if they no longer share things like meals, a bedroom, and social activities.

If you’re not married to each other, you will not be required to obtain a divorce order. If you are married, you’ll be legally married until you get a court order for divorce.

Should separation agreements be in writing?

All separation agreements should be in writing. This is a clear framework to manage the following:

• How will you take care of the children?
• How will you divide property and debt?
• Will one of you pay child support?
• Will one of you pay spousal support?

A separation agreement will help to avoid future conflict and possibly costly court visits. We work closely with you to protect and promote your best interests and family well-being as you address sensitive issues such as:

• Spousal and child support;
• Child custody, guardianship, and parenting arrangements; and
• Property division and debt resolution.

Everyone comes away with clear guidelines and expectations.

Can we write our own separation agreement?

A couple may draft their own agreement and it can be a viable and binding option for preventing or resolving family disputes.

Fair agreements may be upheld, but outrageous bargains are likely to be ignored or varied by the courts. This is important regarding agreements related to parenting arrangements and child support.

Herr Law Group recommends working with a family lawyer to protect both parties. An alternative is to use arbitration, mediation or collaboration to come to agreed terms.

After separating from a spouse, how long do you have to make a property claim?

For unmarried couples, there is no automatic right to division of property. There is a 2-year time limit after separation to make a claim in court. However, separating has many other factors that should be addressed such as the matrimonial home, debt, and any family business interests that may affect the overall determination of a property claim.

Are there different rules if a couple is common-law?

In BC, prior to the 2-year milestone of residing together, couples (who do not have children together), will have a different set of guidelines for separating.

After 2 years of common-law cohabitation, the Family Law Act recognizes the couple the same as a married couple.

The BC Family Law Act applies to people in same-sex relationships exactly as it does to people in opposite-sex relationships.