- click Family law and then divorce & separation for links to general information about separating from your spouse, or
- type "separation agreement" in the search box to find information about separation agreements.
If you decide to use a lawyer, it's worth calling a few lawyers to ask how much they charge to write a separation agreement:
- Some lawyers charge by the hour.
- Some lawyers now offer unbundled legal services, which means you can pay them to help you with certain tasks but not your whole case.
The cost will also depend on how much you and the other person have already agreed to.
If you don’t use a lawyer, you and your spouse should get legal advice before you sign a separation agreement to make sure the terms in it are fair to both of you.
What if you made an agreement when you lived together?
If you and your spouse made an agreement when you were living together (also called a cohabitation agreement), you can use it for parts of a new agreement.
You’ll need to review what you agreed on. You likely agreed on how you’d divide up your property or debt, for example, but you might need to change any parts that no longer apply or seem really unfair now. You might need to get legal advice.
If you have children, you'll also have to add parenting and child support arrangements to the new agreement.
What if you have an informal agreement?
When people first separate they often don't have any sort of formal agreement yet, but they might have informal agreements about certain things. This means you've settled into a routine about how to manage things, but you haven't written any of it down.
For example, if you have children, you might find you have informal arrangements for your children's routine, such as agreeing about who picks them up from school, but you don't write them down.
If you’ve been using your informal agreement for some time and either you or your spouse want to change it, you both have to agree about the change. If you can't agree, think about trying mediation to help you reach an agreement. If nothing else works, you can apply for a court order. The courts will expect you to:
- try to be reasonable with each other, and
- act in the best interests of the children .
Can you change an agreement?
You and your spouse can agree to change your agreement whenever you want to. See How do you change an agreement? to find out more about how to do this.
If you're not sure if you should change your agreement, you can ask for help.
If you can’t agree about changing the agreement and you’ve tried mediation, you might have to go court. The court can set aside (cancel) part of it, or even all of it, and replace it with a court order. But it needs to look at certain things before it can do this.
The chart below shows you what the court thinks about before it decides if any part of your agreement can be set aside. Think about these things when you're thinking about changing an agreement.
Is the agreement unfair? For example, did one spouse not share (either on purpose or by accident) some financial information, or did they take advantage of the other spouse in some way? Or did one spouse not understand what they were signing?
Was the agreement itself "significantly unfair" according to section 164(5) of the Family Law Act?
Was the agreement made unfairly? For example, did one spouse not share (either on purpose or by accident) some financial information, or did they take advantage of the other spouse in some way? Or did one spouse not understand what they were signing?
How do you finalize the agreement?
Before you sign your agreement:
- read it carefully,
- take some time to think about it, and
- ask a lawyer to look at it.
You and your spouse each need to have your own lawyer because lawyers can't act for both people in a separation or divorce. That would be a conflict of interest. What is independent legal advice? can tell you more about this.
When everyone agrees that the terms of the agreement are fair, print three copies of it.
1. You and your spouse sign and date all the copies to show you agree with what the agreement says.
2. Ask someone older than 19 to:
- witness your signatures, and
- sign and date each copy.
The same person can witness both you and your spouse signing and dating it, but you can each ask someone different if you prefer.
3. You and your spouse keep one copy each. Keep the third one in a safe place in case you decide to file the agreement later.
The agreement is binding (you both have to do what you've agreed to) once you and your witness have signed it.
- you're not happy with it, or
- you feel you've been pushed into signing it.
Agreements and the law
If you make your own agreement:
- You and your spouse have to give each other full and true information whether or not you go to court. When you're making your agreement, you have to:
- share all the details about your issue, including any financial information, and
- be completely honest about everything with each other.
If you register your agreement with the BC Family Maintenance Agency, they'll take steps to collect child and spousal support payments.
If you have a separation agreement and want to get divorced, you can apply for an uncontested divorce . You have to use Supreme Court for the divorce process. See Do your own uncontested divorce to find out more about getting a divorce.
Separation: put it in writingNiki learns about making a separation agreement and finds online help, in our illustrated short story Separation: put it in writing.
Splitting up is hard and it's never fun. Go easy on yourself.
