What is a separation agreement?

A separation agreement is a legal document which sets out the terms upon which a legally married or common-law couple have agreed to separate. If it meets certain criteria is can be enforced by a court as a legally binding contract. If one of the spouses violates the terms of the contract the other spouse can sue the first and ask the court to either order the first to comply or pay money to the second.

Elsewhere in this website you will find articles about what a separation agreement needs in order to make sure the court will enforce it. These include the fact that both spouses must sign it of their own free will, not under duress; that it must have been negotiated fairly; and that both spouses were informed about the assets in which they may have a matrimonial interest. It is also very wise for each spouse to have legal advice prior to signing the document.

A separation agreement does not end a legal marriage – only a divorce can do that. It confers no special status in Canada and the term “legally separated” really does not exist in Canadian law. The separation agreement usually lasts indefinitely so long as the spouses remain apart, or at least so long as they do not get back together for 90 consecutive days or longer.

A prenuptial agreement is really just a separation agreement which the couple enters into before they marry. It sets out the same terms as a separation agreement contains: how property and debts are divided; whether spousal support is to be paid; and how children are to be cared for.

Separation agreements can be negotiated informally by the spouses just sitting down and discussing it together or more formally involving lawyers and or a mediator. Mediation is an excellent option for resolving any disputes a couple cannot resolve on their own or with their lawyers. Mediation is much quicker and less costly than going to court and the couple retains control over the outcome rather than placing their fate in the hands of a judge.

Lawyers usually charge a few thousand dollars to negotiate and prepare separation agreements. However, there are do-it-yourself separation agreement kits available at book stores or online for less than $100. Even if you negotiate and prepare your own you should always ensure that both you and your spouse spend a little to get independent legal advice (from a lawyer) before actually signing the agreement.