What is a Separation Agreement?

Often calls are received from people inquiring about getting, or filing for, a “legal separation. There is really no such thing in Canadian law as a legal separation. Instead, what people have heard about is actually called a “Separation Agreement”. This is a private contract dealing with all of the important issues between separating married spouses, except a divorce, which requires a court order. It is also the private contract between common law spouses, upon separation, that covers everything, since they do not need a divorce.

The contract must be in writing, and properly witnessed. It sets out each party’s rights on issues such as child custody, access, child support, spousal support, and property division. Although it is not legally required that each spouse have a lawyer for a separation agreement, it is strongly advisable that you do, for this simple reason: the courts routinely set aside separation agreements between spouses who did not have independent legal advice provided to them with respect to the contract. In such cases it can far more easily be argued by either party that they did not really understand what they were signing, or that they felt coerced or under duress to do so. Negotiating and finalizing a separation agreement is an extremely important time in your life to retain a lawyer. Do not do this yourself.