Separation Agreements in BC: The Complete Guide

A separation agreement is a written contract between separating spouses that settles some or all of the issues between them — parenting, child support, spousal support, and the division of property and debt. British Columbia’s Family Law Act expressly encourages separating couples to resolve these matters by agreement, and gives properly made agreements real force.

It is not a filing, a form, or a court process. You do not need a judge’s permission to make one, and making one does not start a court case. Support terms can, however, be filed with the court afterwards so they are enforceable in the same way as an order — covered in the filing section below.

You need one if you have anything to divide, anyone to support, or children to raise. Which is to say: nearly everyone.

• Married couples generally sign the agreement first, then obtain the divorce order once the one-year separation period has run. See the complete divorce guide.
• Unmarried couples never need a divorce order — but if you lived in a marriage-like relationship for at least two continuous years, most of BC’s property and support law still applies. The agreement is the whole of your settlement, and your claim deadline runs from separation rather than from a divorce, so the clock is usually shorter.
• Couples with no property and no children may genuinely need very little — but a short agreement recording that neither party makes a claim against the other is cheap insurance against a claim years later.

Not every agreement needs every clause. But most disputes we see about old agreements trace back to something in this list that was left out.

A separation agreement is a contract, and the formalities matter. Terms dividing property need to be in writing, signed by both parties, and each signature witnessed. Beyond the formalities, three things do the real work of making an agreement durable:

1. Complete financial disclosure on both sides. This is the foundation. Everything else in this section is secondary to it.
2. Independent legal advice for each party. Evidence that both people understood what they were giving up.
3. Terms that are defensible. Not necessarily equal — parties are free to make deals a court would not have imposed — but explicable. An agreement that departs sharply from the norm should say why it does, in the agreement itself.

Courts do not reopen agreements because one party later decides they could have done better. But there are real grounds, and they fall into two groups.

Something went wrong in the making of it. A party failed to disclose significant property or debt; one party took improper advantage of the other’s vulnerability, ignorance or need; a party did not understand the nature or consequences of the agreement; or the agreement is voidable on ordinary contract grounds such as duress or undue influence.

The result itself is significantly unfair. Even where the process was clean, property and spousal support terms can be set aside if the outcome is significantly unfair — weighing how long the agreement has stood, the parties’ intention to achieve certainty, and the extent to which each has relied on it. That last factor is why challenges get harder as years pass.

Child support is treated differently. Because the money belongs to the child, a court can review child support terms regardless of what the parents agreed, and can substitute the Guidelines figure. Read the complete child support guide.

The single strongest protection against all of this is boring and unglamorous: disclose everything, and document that you did.

One lawyer cannot act for both of you. Your interests genuinely conflict, and a lawyer who tried to advise both would be unable to advise either properly.

The normal arrangement is that one party’s lawyer prepares the draft, and the other party takes it to their own lawyer for independent legal advice before signing. That lawyer explains what the agreement does, what the alternative outcomes might be, and whether the deal is within a reasonable range — then signs a certificate confirming the advice was given.

Independent advice is not a legal precondition to a valid agreement. It is, however, the difference between an agreement that is hard to attack and one that invites the argument “I didn’t understand what I was signing.” If budget is the obstacle, an advice-only appointment is one of the cheaper things a family lawyer does — see unbundled services.

The law is identical whichever route you take. What changes is cost, speed and how much of the outcome you control. The six steps below apply in all of them.

1. 1

   Exchange full financial disclosure

   Both parties list every asset, debt, income source and pension, with documents to back them up. This step is not optional — an agreement built on incomplete disclosure is the one most likely to be set aside later.

2. 2

   Identify what actually needs deciding

   Parenting arrangements, child support, spousal support, division of property and debt. Some families have all five in play; some have two.

3. 3

   Negotiate the terms

   At the kitchen table, through a mediator, through collaborative practice, or through lawyers. The route changes the cost and the timeline, not the law that applies.

4. 4

   Have it drafted properly

   The terms are turned into a written agreement with the operative clauses, releases, review provisions and dispute-resolution mechanism spelled out.

5. 5

   Each party gets independent legal advice

   Separate lawyers, each advising their own client on what the agreement means and whether it is reasonable. Certificates of independent legal advice are normally attached.

6. 6

   Sign, witness and file

   Both parties sign in front of a witness. Support terms can then be filed with the court so they are enforceable in the same way as an order.

Step 3 is where the routes diverge: negotiating directly, through a mediator, through collaborative practice, or through lawyers. The comparison table in the divorce guide sets out which fits which situation.

An agreement is a contract, and a contract that is breached normally has to be sued on. Support terms are different: a written agreement dealing with child support or spousal support can be filed with the court, after which it can be enforced as though it were a court order — including through the BC Family Maintenance Agency, formerly the Family Maintenance Enforcement Program.

This is a small administrative step with a large practical effect, and it is routinely skipped by people who draft their own agreements. If support is payable under your agreement, ask specifically whether it has been filed.

People often assume a court order is stronger. In practice the choice is more nuanced.

• An agreement is private, faster, cheaper, and can contain terms a court would not have jurisdiction or inclination to impose. It reflects what you decided rather than what a judge decided.
• A court order is directly enforceable without filing, is harder to reopen on procedural grounds, and may be the only option where one party will not engage or where there are safety concerns.
• Both is common. Many families settle by agreement and then have its terms incorporated into a consent order — the negotiated outcome with the enforceability of an order.

Different terms have different degrees of finality, and a good agreement is explicit about which is which.

• Child support follows income and can always be revisited. Build in annual disclosure and automatic adjustment so it never goes stale.
• Spousal support can be drafted as final, as reviewable on a stated trigger, or as variable on a material change. This should be a deliberate choice, not an accident of drafting — varying or ending spousal support.
• Parenting arrangements can be changed by agreement at any time, and by a court where the child’s best interests require it.
• Property division is generally meant to be final once done.

Where you both agree on a change, record it in a written amendment. Verbal variations are the source of an enormous number of later disputes.

At our office a separation agreement typically runs $900 to $8,000, depending on how many of the five issues are live and how much negotiation is needed. A short agreement between parties who already agree sits at the bottom of that range; a full agreement covering a house, a pension, a business and children sits nearer the top.

If the divorce order follows, a simple uncontested desk order divorce is a $2,200 flat fee. Court filing fees are payable to the court separately.

On timing: drafting is quick, negotiation is not. Families who have disclosed and broadly agree are often done in weeks. Through mediation, most need one to four sessions. The step that reliably causes delay is incomplete disclosure, which is why it is step one.

Fees shown are starting points for straightforward matters. Complex circumstances are quoted individually at your consultation, which is free for the first 30 minutes.

• An annual disclosure and adjustment clause. Without it, child support silently goes stale and someone litigates years of difference later.
• A mediation-first dispute resolution clause. Requiring mediation before either party can file is one of the cheapest clauses in the document and one of the most used.
• A mechanism for the house, not just a decision. “She keeps the house” is not a clause. Who refinances, by when, what happens if the lender says no, and how the transfer is documented — those are clauses.
• Life insurance securing support. Support obligations do not fund themselves if the payor dies. Insurance with the recipient or children named, and proof of coverage on request, closes the gap.
• Pension division wording. Pensions usually need specific language and often a separate form. A general statement about splitting them can be unactionable when you go to implement it.
• The estate follow-through. Separation changes who inherits from you and who can make decisions if you become incapable. Update your will, beneficiary designations and powers of attorney at the same time — wills and estates.

Everything we have written that bears on reaching and drafting an agreement.

The other two complete guides: Divorce in BC and Child Support in BC. Or browse the full blog archive.