Separation and separation agreements

“My spouse and I just finished making our separation agreement. We didn’t agree on everything so it took us a while to put it together. We got help from a family justice counsellor to work out parenting arrangements and support. After we signed off on the agreement, we filed it in Family Court because there aren’t any filing fees. And it will be enforceable like a court order. I’m glad we did this! Now we both understand what our rights and obligations are.”

– Hannah, Pemberton, BC

Under the law in BC, a spouse is someone who:

• is married, or

• has lived together with another person in a “marriage-like relationship”

  • for at least two years, or

  • for less than two years and has a child with the other person.

Spouses are separated when one or both people:

• decide their relationship is over,

• tell the other person their decision, and

• act like the relationship is over.

Spouses don’t need to agree to separate.

Separation usually marks the end of a couple’s relationship. Most separating couples stop eating and sleeping together. They also stop doing chores for each other and going out together.

Attempts to get back together

Separation doesn’t always mean a relationship is over for good. Some people go to counselling to try to rebuild their relationship.

Married spouses can try to reconcile (get back together) by living together for up to 90 days without it affecting the date they are seen to have separated. (Married spouses can divorce after having lived separate and apart for at least one year.) If they live together for more than 90 days, the clock resets and a new one-year separation period begins, if they separate again.

Separated but living in the same home

After separating, couples live apart. But, they don’t have to move into separate homes. Sometimes people stay together under the same roof but have separate bedrooms. It’s less expensive to live in the same home while they figure out how to deal with their property, children, and any potential support claims.

There’s no such thing as a “legal separation” in British Columbia. You don’t have to sign any papers or see a judge or a lawyer to separate. Couples can just … split up.

That said, it’s important to keep track of the date you separate. It’ll affect your rights to division of property, debt, and support. Unless a cohabitation agreement or marriage agreement says otherwise, the date of separation is generally the day that:

• one person tells the other they want to end their relationship, or

• a couple jointly decides to end their relationship.

A separation agreement is a written and signed document. It records how a couple has agreed to settle their family law issues.

You should consider making a separation agreement for these reasons:

• It’s a legal contract recording the terms of your agreement.

• It can be enforced by the court.

• It’s a lot cheaper and often quicker to resolve family law issues by an agreement than by going to court.

• It helps avoid confusion over what to do about family law issues after separation.

For married and unmarried spouses, a separation agreement can cover many different family law issues, including whether a spouse should receive financial help — and, if so, who should get it and how much. This is called spousal support.

For parents, there may be additional family law issues in a separation agreement, including:

• How the parents will cover the children’s financial needs. This is called child support.

• How the parents will care for and share time with the children. This is called parenting arrangements and includes parenting time and contact.

• Who the children should live with and how child care decisions will be made.

A couple might agree that their children will live mainly with one parent. (The other parent can have time with the children on certain times and days.) Or they may agree to share parental responsibility. In that case, the children live partly with each parent. Whatever parenting plan you and your spouse agree to, you can put it in a separation agreement.

A separation agreement can deal with property and debt issues, including:

• How family property (property acquired during the relationship) will be divided.

• How responsibility for family debts will be shared.

The Family Law Act provides guidelines on what assets are considered family property and what debts are considered family debt. It also sets out the rules for how to divide that family property and debt. Basically, when a couple separates, each spouse has a right to equally share in property they acquired together. Each spouse also gets a share of the increase in value of any property that either brought into the relationship. The law calls this increase family property as well.

The Act also sets out how to handle excluded property (assets that are not family property). This can be complicated — if you have a lot of assets, you should get help from a lawyer.

If you own other property besides your home (for example, a car, a cottage, or investments), a separation agreement can cover how to divide these assets too.

See our information on dividing property and debts for more on this topic.

Who is responsible for debts

When a couple separates, each spouse is usually responsible for half of the debt incurred during the relationship. The law calls this family debt. Each spouse may also be responsible for half of the debt incurred after separation. This is true if the money went to maintaining family property.

Spouses can deal with division of debt in a separation agreement. Until then, they must make decisions about paying the family bills. Does the spouse who gets to live in the house have to pay the mortgage? Who will pay for the credit cards and utilities? Our information on dividing property and debts has more on this topic.

A separation agreement can say what happens with the family home. Spouses can decide whether one spouse will keep it, whether it’ll be sold, or whether some other arrangement will be made. Even if the home is in one spouse’s name, the other spouse may be entitled to a share in it.

Some spouses think the parent who usually has the children ought to be the one who stays in the home. This is so that the children can continue to live in the family home until they finish high school.

Others think it’s best for only the children to stay in the home, while the parents take turns moving in and out. This is called nesting.

Yet another option: both spouses stay in the home until an agreed-upon date or until one of them wants to sell. There are many possibilities so it’s helpful to get legal advice about your options.

You don’t need a separation agreement to get divorced. But if you have children, the court will want to see evidence that reasonable financial arrangements have been made for them. Otherwise the divorce order won’t be granted.

Having a separation agreement can be helpful because:

• you can set out the arrangements you and your spouse have agreed to, and

• the divorce application process could end up being less expensive, faster, and uncontested.

If you don’t have children and there aren’t any property or support issues, then you may not need a separation agreement. It’s a good idea to get independent legal advice from a family lawyer. They can help you decide whether you need a separation agreement or whether to sign one.

You can’t force someone to sign a separation agreement. If you want to resolve things but the other spouse doesn’t, you have a few options.

First, you can get a lawyer. They might be able to help with negotiating an agreement.

Second, you can suggest ways to work out an agreement without going to court. One way is mediation. This involves meeting with a neutral person, a mediator, who helps you both find a solution you agree on. Or you can suggest a collaborative negotiation approach. This is a kind of negotiation where you each have your own lawyer and agree you will do everything possible to reach an agreement without going to court. A third way you might suggest is arbitration. This involves hiring a neutral third party to make decisions about your dispute. You and your spouse agree to be bound by these decisions. We explain all of these options here.

Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial.

Both the BC Family Law Act and the Divorce Act encourage separated spouses to resolve their family law issues out of court. Using negotiation or mediation is a good idea — unless it would be inappropriate in the circumstances (for example, where there has been family violence).

You and your partner may want to make decisions together. But you may be having trouble negotiating with one another. Mediation can help. A trained family law mediator, such as a family justice counsellor or a private mediator, can work with you. They can help you to develop a parenting plan for the children and help you make other decisions as well.

A collaborative negotiation approach may also be used to settle things. Here, the couple and their lawyers agree to work together. They can negotiate an agreement. The couple and their lawyers sign a collaborative participation agreement saying no one will go to court or threaten to. If the collaborative negotiation process breaks down, the spouses must hire new lawyers if they want to go to court.

For more on these options, see our information on mediation and collaborative negotiation.

If a spouse dies before a separation agreement is signed or before a court action is started, this can seriously affect how property and debts are divided. Things can get complicated.

You should get legal advice about how best to protect yourself if:

• you know you are dying,

• your partner may die before things are resolved, or

• your partner died after separation but before you finalized a separation agreement.

If you run a business together, you may not want to be business partners after you separate. It’s important to resolve all of the financial issues relating to your business. They can be complicated (especially if there are tax issues), so it’s a good idea to get legal advice from a family lawyer before making a separation agreement.

Separation agreements can have a serious and long-lasting impact on your legal rights and obligations. So it’s a good idea to have a lawyer prepare yours if you can. 

If you decide to hire a lawyer, it's worth calling a few offices to compare what they charge. (You and your spouse can't use the same lawyer — each of you needs your own.) More lawyers now offer "unbundled" services: they handle just the part you need — like drafting or reviewing the agreement — rather than your whole case. That's brought costs down. Some will draft a separation agreement for a fixed fee, often between $1,500 and $2,500 depending on how complex your situation is. A lawyer who handles everything from start to finish, or a more complicated situation involving significant assets or disagreements, can run to several thousand dollars more.

If you and your spouse decide to prepare your own agreement, have a lawyer review it before you sign. And if your spouse gives you an agreement to sign, it's very important to get independent legal advice. Once signed, the agreement is a legally binding contract — which is why getting advice first matters.

If you can't afford a lawyer, Legal Aid BC's Family LawLINE offers free telephone advice from a family lawyer on issues like parenting, support, and agreements. To use it, call the Legal Aid BC Call Centre at 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (elsewhere in BC). An intake worker will ask about your situation and, if you qualify financially, transfer you to the service. Their website lists hours and details.

A low-cost option is the Everyone Legal Clinic, where clinicians provide fixed-fee family law services — for example, $1,100 to review a draft separation agreement the other party has given you.

You don’t have to file your completed separation agreement in court. But if you do, you can file in BC Provincial (Family) Court or BC Supreme Court. Filed agreements that include terms about parenting and support can be enforced as if they are court orders.

They’re meant to be permanent, so most separation agreements last until one or both people die. Agreements that end sooner will say so. However, agreements about children and support may be changed if there’s a material change in circumstances.

For a marriage to end, married but separated spouses must divorce. That means they must get a BC Supreme Court order saying they are divorced. After that, they can remarry. (For more on divorce, see our information on the requirements for divorce.)

For unmarried spouses and other unmarried couples, the relationship is over the moment they separate. They do not have to apply for a divorce. Unmarried couples include people who have lived together for less than two years and have no children together.

The Family Law in BC website from Justice Education Society of BC has a step-by-step guide for making a separation agreement.

• Visit website

The wikibook JP Boyd on Family Law explains the formal requirements of a separation agreement in detail.

• Visit website