Making an agreement after you separate
When you divorce or separate from your spouse or common-law partner, there are many issues you need work out. These include:
- 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?
Many couples are able to solve these issues without going to court. Going to court can be expensive and time-consuming. It can also increase conflict because the court process is based on a win-lose approach. This doesn't help families maintain healthy relationships, which is especially important if there are children involved.
If there are problems you need to work out, it doesn't always mean that you have to go to court. There are dispute resolution professionals who can help you come to an agreement. (See our fact sheet Who can help you reach an agreement?) In some cases, though, families need a judge to decide things for them, and that option is always available to those who need it.
If you and your spouse can work together to reach a fair agreement, it's important that you have it written down and that both of you sign it. Here are some other things you should know about agreements.
The law encourages and supports using agreements to resolve family law issues. There are some important rules about agreements you should know about:
- You and your spouse must provide each other with "full and true information." Fair and lasting agreements are based on being honest about the facts.
- When deciding on arrangements for taking care of the children, the best interests of the children should be the only concern.
- Lawyers (and other dispute resolution professionals) must tell you about the options — both involving the court and not involving the court — for resolving your family law issues.
- If you file your agreement with the court, most of it will be enforceable just as a court order would be.
- Courts will respect fair agreements, but in some situations, the court will set aside (cancel) the agreement and replace all or part of it with a court order.
- You should never feel pressured to sign an agreement. You should always get independent legal advice, especially if you're worried that the agreement is unfair.
Many people who separate don't have any sort of formal agreement, especially at first. After a while, you may develop informal arrangements for your children's routine. If that happens, you or your spouse can't change this informal agreement without the other person agreeing. If you can't agree, you can apply for a court order.
Tip: For help with drafting a legally binding separation agreement, see our self-help guide How to write your own separation agreement.
You and your spouse can write the agreement yourself or you can ask a lawyer, family justice counsellor, or mediator to help you. See our fact sheet Who can help you reach an agreement? for more information.
For general guidelines and suggestions about how to put together a separation agreement, see these online resources:
- Clicklaw — click on "family law" and then "divorce and separation" for links to general information, or search for "separation agreements" for more specific links
- JP Boyd on Family Law — "Family Law Agreements"
- Our booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce (see Chapter 3, "Separation")
There is also a kit called Separation Agreement (Self-Counsel Press, 3rd edition), which takes you through the process. You can download it or order the book (which comes with a CD-ROM) from the Self-Counsel Press website. The kit is also available at many bookstores and stationery stores. It has completed samples of separation agreements and blank forms that you can use, including forms that you can fill out using a computer.
Before signing a separation agreement, you and your spouse should get legal advice to make sure your rights and interests are protected.
If you made an agreement while you were still living together, you can use it to create parts of your new agreement. But you do need a new agreement after separating. You'll have to add information about your parenting plan and child support to this new agreement.
No matter how you make your agreement, take some time to think about it before you sign anything. You should have a lawyer look at it before you sign it. You'll each need to have your own lawyer look at the agreement because lawyers aren't allowed to act for both people in a separation or divorce. That would be a conflict of interest. See the fact sheet What is independent legal advice?
An agreement should be signed by both spouses. The agreement is binding once it's signed. If the agreement is about property or spousal support, the signature should be witnessed by at least one other person who is an adult. The same person can witness both signatures.
Don't sign any agreement if you feel any pressure to do so.
If one of you doesn't follow what it says in the agreement about parenting or support, the other can get the court to enforce the agreement. The Provincial Court and BC Supreme Court will enforce the parts of the agreement relating to parenting and support.
You'll have to file the agreement with the court first before the court can enforce it. You can file the agreement with the court anytime, however; you don't have to wait until there's a conflict about the agreement.
To file your agreement, take a copy of your signed agreement to the Provincial Court or Supreme Court registry and ask to have it filed.
If you have a separation agreement and want to get divorced, what you've agreed to can become part of your divorce order as long as the judge agrees you've made reasonable arrangements for the support of the children.
See our self-help guides on applying for a divorce.
You and your spouse can agree to change your agreement at any time. You can do that by writing a new agreement and signing it. If you're making a small change, you can change your original agreement. Then you and your spouse need to each initial and date the change.
If you need someone to help you figure out if and how to change your agreement, see our fact sheet Who can help you reach an agreement?
The court will generally respect agreements. If you want to change the agreement and your spouse doesn't, you can try to get it changed by applying to the court. They won't actually change the agreement; what happens is that part or all of the agreement is set aside (cancelled) and they replace it with a court order. But the court will only do that in certain circumstances.
The chart below sets out the tests the court will use to decide whether or not any part of your agreement can be set aside. Think about these tests when you're thinking about changing the agreement.
|Type of agreement||Test|
|Guardianship, parental responsibilities, and parenting time||Is the agreement in the best interests of the child?|
|Contact with a child||Is the agreement in the best interests of the child?|
|Child support||Looking at section 150 of the Family Law Act, would the court make a different order for determining child support than the one in your agreement?|
Was the agreement made unfairly? For example, did one spouse not share financial information, or did he or she take advantage of the other spouse's vulnerability? Or did one spouse not understand what he or she was 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 financial information or did he or she take advantage of the other spouse's vulnerability? Or did one spouse not understand what he or she was signing?
Was the agreement itself significantly unfair according to section 93(5) of the Family Law Act?
Tip: For more information, see our fact sheet on How to change an agreement.
As mentioned above, the court will enforce the parts of the agreement that have to do with parenting and child and spousal support as if they were court orders. (You'll have to file the agreement first, however.) See our self-help guide How to enforce a parenting agreement or order
You can also register your agreement with the Family Maintenance Enforcement Program, which will enforce the child and spousal support parts of the agreement.
You may choose to put your agreement into a consent order (Supreme Court Form F33; Provincial Court Form 20), also known as a final family order. When you apply for a consent order, you're asking the court to make an order based on the terms that you and your spouse have agreed to. Consent orders aren't more "official" than agreements that are filed with the court — and later on you can apply to change either an agreement or a court order. But people who don't have lawyers to help them draft an agreement and who are concerned about being able to draft fair and enforceable agreements on their own may prefer a court order instead.
Note that agreements are more flexible than court orders; they can contain provisions that a judge wouldn't put in an order and often cover more details.
Usually, the judge will make a consent order without you having to appear in court, as long as your paperwork is in order and the judge is satisfied you've made appropriate arrangements for the children. For help on applying for a consent order, see our step-by-step guide How to get a final family order if you agree.
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