Script 115 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script relates to legally married spouses only. For information on separating from a common-law partner, refer to scripts 147 and 148.

There are three different ways to separate from your spouse
These are:

• Just living separately and apart (without any court order or agreement), including living separate and apart in the family home
• Living apart with a written separation agreement
• Living apart and obtaining a court order declaring that there is no reasonable prospect of reconciliation between the two of you

Do you have to think about divorce now?
If you simply separate and live apart, you don’t have to think about divorce yet. If you want, you can ask a court to deal with custody, maintenance, support and property issues. Later, you can consider divorce.

When can you get a divorce?
One year after you separate, you can get a divorce based on that separation. If you can’t afford to move out and get your own place, the day you tell your spouse that you intend to separate may be considered to be the date of separation.

For information on the grounds for divorce, refer to script 120 on “Requirements for Divorce and Annulment.”

Should you get a written separation agreement?
If you have children or own a house or other property together, it’s a good idea to have a formal written agreement when you separate. This is what people usually mean when they talk about a “legal separation.” The agreement, which is a legal contract, can deal with things like:

• Who the children will live with
• Support payments for children and spouses
• Occupancy of the family home
• Division of property
• Payment of family debts
• Splitting a family business

Child custody is an important issue in a separation agreement
The two of you may agree that the children will live mainly with one parent, and the other parent can have time with the children on specified days, such as alternate weekends and holidays. Or, you may agree to share responsibility for looking after the children and have them live partly with each parent, although not necessarily equal time. There are many different types of parenting arrangements that can be agreed to in a separation agreement. You may want to get some advice first from a counsellor, lawyer or perhaps a mediator.

A separation agreement can also deal with financial support
For more information about support, refer to script 117 on “Child Support” and script 123 on “Spousal Support.” The income tax rules about support payments are important too, so refer also to script 133 on “Income Tax Implications of Maintenance and Support.”

Who gets to keep the house?
This can also be resolved in a separation agreement. Don’t forget that even if the house is in one spouse’s name, the other is almost always entitled to a share in it. If financially possible, parents often think it’s best to let the parent who the children primarily live with stay in the house. Depending on the mortgage payments, this may be cheaper for that parent than renting. Sometimes, one spouse may want to “buy out” the other. There are many choices, and a lawyer can help you decide what’s best.

How do you split other property?
When a couple separates, each spouse has a right to share in all the family assets. If you own other property in addition to your home (for example, a car, cottage or investments), a separation agreement can cover how to divide these assets too. Refer to script 124 on “Dividing up Family Assets” for more on this topic.

Who pays the debts?
Does the spouse who gets the use of the house have to pay the mortgage? Who pays the credit card bills? These matters can also be covered in a separation agreement.

What if you and your spouse have a business together?
If you’re separating because of personal differences in your marriage (as is usually the case), you probably won’t want to be business partners any longer. It’s therefore especially important to resolve all financial issues relating to your business – and have those dealt with in a separation agreement.

Is mediation or “collaborative family law” a good idea?
Mediation can be very helpful if you and your spouse want to make decisions in the most cooperative way possible. A trained “mediator” can work with you to develop a parenting plan for the children and make other decisions. Your lawyer may or may not be with you at the mediation sessions, but if you see a mediator, it’s important that you consult a lawyer about your rights and responsibilities before signing any separation agreement.

Similiarly, a collaborative family law process may be adopted to resolve the terms of a separation agreement. In this process, the spouses and their respective lawyers agree in writing to cooperate and work together to negotiate an agreement that resolves the issues arising out of the separation. The agreement provides that no one will go to court or use threats of court. If the process breaks down, the spouses must retain new lawyers.

For more information on this, refer to script 111 on “Mediation and Collaborative Family Law.”

A lawyer should prepare the separation agreement
A husband and wife can’t have the same lawyer. You should each get your own lawyers so that each of you is protected and has independent legal advice.

What does a separation agreement cost?
The cost depends on the lawyers you pick and how complicated your situation is. Ask your lawyer at the beginning for an idea of what it will cost. To save time and money, take as much information with you as you can when you see your lawyer. Take things like:

• Income tax returns
• Pay slips for you and your spouse
• Documents about the house and mortgage
• Papers about other assets such as RRSP’s
• Documents relating to any debts

Also, think about what your financial needs are and prepare a list of your monthly expenses before you go. This way, your lawyer can give you informed advice about financial matters.

How long does a separation agreement last?
The agreement should say how long it’s good for. Some separation agreements apply only until the divorce. Some are good for life. And some will continue to apply to other people involved even after your death. A separation agreement can also affect what you want to do in your will.

You may need to get a court order
If you and your spouse have property or assets, it might be important to apply to the Supreme Court for an order that “there is no reasonable prospect of reconciliation” under section 57 of the Family Relations Act. The date of the “section 57 declaration” is often the first date a judge can use to determine the value of various assets and your entitlement to them. You should discuss this type of court order with your lawyer.

What happens if one spouse dies during negotiations?
The death of one spouse before the two of you have signed a separation agreement or a court has made the “section 57 declaration” can seriously affect the rights of both spouses. This can get complicated, so you should obtain legal advice from your lawyer about how best to protect yourself in this situation.

Summary
You don’t need a separation agreement to separate. But if you have children or property, or need financial support, it’s best to have a formal written agreement. And you should each have your own lawyer. If you have property, your lawyer may also recommend obtaining a “section 57 declaration” saying that there is no reasonable prospect of reconciliation.

[updated March 2009]

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