Separation agreements
A common question that people ask about separation is, "Where do I find the forms to get a legal separation?" The short answer to this question is that there are no such forms. To be considered separated, all you need is for at least one spouse to intend to end the marriage. In most cases, one spouse leaves the family home or tells the other spouse that the marriage has ended. There are no legal documents to sign, and you don't need to go to court. Separation is not divorce, which is the legal end of a legal marriage. A couple can stay separated for the rest of their lives without divorcing.
For an overview of the issue, see JP Boyd's BC Family Law Resource page on separation.
What is a separation agreement?
When people talk about a "legal" separation, they usually mean that the spouses have signed a separation agreement, a contract between spouses that says what they've agreed to do about issues such as:
- child custody, guardianship, and access
- support payments
- who gets the family home and how other property (including money) will be divided
- how to pay family debts, such as a home mortgage or credit card balances
You don't have to have one of these agreements to be considered separated, but it's a good idea to make one. When you file an agreement with the court, the parts of it that deal with custody, access, guardianship, and (in the Supreme Court) support have the same force as a court order.
Tip: You can also file one of these agreements if you're getting divorced, not just separating. It could be a convenient way to settle your issues without having to go through the court process.
How to write a separation agreement yourself
You can draft a separation agreement yourself or together with your spouse. For general guidelines and suggestions, see these online resources:
- Clicklaw — search under "separation and divorce" for links to general information or under "separation agreements" for more specific links
- JP Boyd's Family Law Resource — Separation agreements
- Ministry of Attorney General — Family Justice — What is the best way to settle all the issues surrounding our separation?
- Legal Services Society — Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce (see page 15 of this booklet)
There’s also a kit called Separation Agreement (Self-Counsel Press, 3rd edition) that takes you through the process. You can order it online from the Self-Counsel Press website or buy it at many bookstores and stationery stores. It has completed samples of separation agreements, blank forms that you can use, and a CD-ROM with blank 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.
Filing your separation agreement with the court
If you file an agreement in Provincial Court, the provisions about child custody, guardianship, and access have the same force as if a judge had ordered them (in other words, you can ask the court to enforce those provisions later if you need to). To file your agreement, fill out a Consent to File Agreement (Form 28) and bring it to the Provincial Court registry with your signed agreement.
To file your agreement in Supreme Court, take a signed copy to the registry and ask to have it filed. The provisions about custody, guardianship, and support will then be enforceable by the court. You will have to pay a fee of $30.
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