SEPARATION AGREEMENT

A Separation Agreement is a domestic contract entered into by two people who were married or cohabiting and who have now separated.

A Separation Agreement articulates what the parties have agreed to, on the various issues that may have arisen as a result of their separation including:

• Ownership in or division of property
• Spousal support
• Child support
• The right to direct the education and moral training of the parties’ children
• The right to decision-making responsibilities or parenting time with respect to children.

You do not need to be divorced to enter into a separation agreement. A separation agreement can even be entered into while the parties are still residing in the same home however, they must be living separately (not as a couple) even though they are residing under the same roof.

The reality is for most, in order to get a divorce, they would need to wait a year after the date of separation however, there are important issues that ought to be resolved quickly when possible, such as how would support be paid, even if on an interim basis. Who would have exclusive possession of the home and for how long? How would decisions about the children be made and with whom will the children reside? A separation agreement allows people to articulate their agreement on these issues, without having to wait to get a divorce.

A separation agreement can be temporary, to be valid for only a specified period of time, or until a final separation agreement is signed.

In cases where the parties have a final agreement on some but not all the issues, a partial separation agreement can be entered into. For example, you can enter into a partial agreement on property division and child support, while negotiations or litigation proceeds on the issue of spousal support.

There are times when a divorce may not be appropriate as it could lead to loss of benefits, as an example. In those cases, the parties may choose to remain legally married, but resolve all other issues within their separation agreement.

There is no time limit as to when to enter into a separation agreement. However, you must be mindful of the limitation period for bringing property claims, which is:

• 1) 6 years after the date of separation; or
• 2) 2 years from the date of divorce.

It is highly advisable to get your separation agreement drafted by a lawyer, even if you and your partner are amicable and agree on all the terms. Do not fall into the pitfall of drafting a “kitchen table agreement”. The costs associated with interpreting poorly drafted agreements is usually way more than it could ever possibly cost if it was drafted properly in the first place. Proper drafting could help eliminate such conflicts as each party’s rights and obligations would be clearly articulated.

For a separation agreement to be validly enforceable contract, it must be signed by the parties and witnessed. It is important to make sure you get legal advice regarding the Form of the Agreement as well as its terms, to avoid the agreement being set aside/invalidated in the future.

A court may set aside a separation agreement for:

• 1. Lack of financial disclosure
• 2. Lack of independent legal advice
• 3. Fear, threats, undue influence
• 4. Lack of understanding of the nature and effect of the Agreement

These can easily be avoided. Parties enter into Separation Agreements to achieve certainty and finality. At AP Lawyers we work with you to draft an enduring, legal binding separation agreement.