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 Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Who is a spouse?
Under the federal Divorce Act, a “spouse” is someone who is or was married to someone else. Under the provincial Family Law Act, “spouse” includes:
- married spouses;
- people who lived together in a marriage-like relationship for at least two years; and,
- people who lives together in a marriage-like relationship for less than two years, if the couple have had a child.
What is separation?
Married and unmarried spouses have separated when one or both of them make the decision that the marriage cannot continue and communicate that decision to the other spouse. Spouses do not need to agree to separate; only one spouse needs to decide that the relationship is over for a couple to be separated.
Separation usually involves the end of the spouses’ life together as a couple. Most spouses stop eating together, stop doing chores for each other, stop going out together and stop sleeping together.
Separation does not require that the spouses move into separate homes. Spouses sometimes stay living together under the same roof (often in separate bedrooms) because it’s cheaper to live together with one set of household bills than live apart with two sets of bills. If the spouses stay living under the same roof, they will usually move into separate beds, stop sharing meals together and so on.
Separation doesn’t always mean that a relationship is over for good. Some spouses go to counselling and use their time apart to rebuild their relationship, with the hope of eventually reconciling and resuming life as a couple. For others, reconciliation is impossible and separation ends their relationship.
What is a “legal separation”?
There is no such thing as a legal separation in British Columbia. There are no papers to sign to separate and you don’t need to see a judge or a lawyer to separate.
Do you have to think about divorce now?
Only married spouses need to divorce to end their legal relationship. However, if you have just separated, you don’t have to worry about divorce yet. Divorce is usually a fairly low priority. Most people have more important things to think about, such as where the children will live, how the children’s time will be shared, whether support should be paid and if so to whom and in what amount, and how property and debt should be divided.
When can you get a divorce?
Married spouses may apply to court for a divorce order after they have been separated for one full year. Married spouses can live together to try to reconcile for up to 90 days without interrupting the one year period of separation; if the spouses live together for more than 90 days trying to reconcile, the one year period starts again on the date of their last separation.
For information on the grounds for divorce, refer to script 120 on “Requirements for Divorce and Annulment”.
What is a “separation agreement”?
A separation agreement is the written record of how a couple has settled of the issues arising from the end of their relationship. For most spouses, these issues include:
- Who the children should live with and how decisions about the care of the children will be made? Under the Divorce Act this is called custody; under the Family Law Act this is called parental responsibilities and parenting arrangements.
- How the spouses will share the children’s time. Under the Divorce Act this is called access; under the Family Law Act this is called parenting time and contact.
- How the spouses will cover the children’s financial needs. This is called child support.
- Whether a spouse is entitled to financial help meeting his or her expenses, and, if so, who should provide that help and in what amount. This is called spousal support.
- For married spouses and unmarried spouses who have lived together for at least two years, how property will be divided and how responsibility for debts will be shared.
If you can manage to settle these issues, you should consider making a separation agreement for two reasons. First, separation agreements are legal contracts that can be enforced by the court. Second, it’s much cheaper and often quicker to resolve these issues by agreement than in court.
The care of children
The two of you might agree that the children will live mainly with one parent, and the other parent can have time with the children on specified days. Or, you may agree to share responsibility for looking after the children and have them live partly with each parent. There are many different types of parenting plans that can be agreed to in a separation agreement. You may want to get some advice first from a counsellor, a lawyer or a mediator.
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 you should also refer to script 133 on “Income Tax Implications of Support Payments”.
The family home
A separation agreement can also say whether one spouse will get to keep the family home or whether it will be sold. Don’t forget that even if the house is in one spouse’s name, the other spouse is almost always entitled to some share in it. Some spouses think it’s best to let the parent who usually has the children stay in the house. Depending on the mortgage payments, this may be cheaper for than renting a new place. There are many choices, and a lawyer can help you decide what’s best.
When a couple separates, each spouse has a right to a share in the property accumulated during the relationship as well as the increase in value of any property brought into the relationship. If you own other property in addition to your home (for example, a car, a cottage or investments), a separation agreement can cover how to divide these assets too. Refer to script 124 on “Dividing Property and Debts” for more on this topic.
When a couple separated, each spouse is usually responsible for one-half of the debt accumulated during the relationship. That can be covered in a separation agreement. Until then, decisions must also be made about paying for the family bills. Does the spouse who gets the use of the house have to pay the mortgage? Who will pay for the credit cards and utilities? Refer to script 124 on “Dividing Property and Debts” for more on this topic.
If you run a business together you probably won’t want to be business partners any longer. It is important to resolve all of the financial issues relating to your business and have those dealt with in a separation agreement.
Are mediation or collaborative settlement processes a good idea?
Mediation can be very helpful if you and your spouse want to make decisions in the most cooperative way possible and are having trouble negotiating with each other. 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.
A collaborative approach may also be used to settle things. In these processes, the spouses and their lawyers agree to cooperate and work together to negotiate an agreement that resolves the issues arising from the separation. The agreement provides that no one will go to court or use threats of going to court. If the collaborative process breaks down, the spouses must hire new lawyers if they want to go to court.
For more information on this, refer to script 111 on “Mediation and Collaborative Settlement Process”.
A lawyer should prepare your separation agreement
Separation agreements can have a serious and long-lasting impact on your rights and obligations. As a result, it’s always a good idea to have a lawyer prepare your separation agreement. Spouses can’t have the same lawyer, however, and you should each get your own lawyers to learn about your rights and obligations and get independent legal advice about what your agreement means.
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
- Paystubs for you and your spouse
- Documents about the house and mortgage
- Papers about other assets such as RRSPs, investment accounts and savings accounts
- Documents relating to any debts such as credit cards and lines of credit
Also, think about what your financial needs are and consider preparing 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?
Most separation agreements last until you or your spouse die; most are meant to be permanent. Agreements that end sooner will say so.
What happens if one spouse dies during negotiations?
The death of one spouse before the two of you have signed a separation agreement or the court has made a final order can seriously affect your rights and entitlements. This can get complicated, so you should obtain legal advice from your lawyer about how best to protect yourself if there is a chance your spouse may die before things are resolved.
You don’t need a separation agreement to separate, and you don’t need to see a lawyer or a judge to separate. You and your spouse don’t even need to agree to separate. If you have separated, and if you have children or property or need financial support, it’s best to have a formal written agreement if you can reach a settlement on these issues and want to avoid going to court. If you can negotiate a settlement, you should have a lawyer prepare the written agreement and you should each have your own lawyer to give you advice about the meaning and legal effect of the agreement.
The laws referred in this script are available at www.bclaws.ca or http://laws-lois.justice.gc.ca.
[updated March 2013]
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