1. What is a Separation Agreement?
A Separation Agreement is a written contract between legally married spouses outlining the terms of their separation. It can apply to both trial (temporary) and permanent separations. This document may address issues such as:
Child support, custody, visitation rights, and health insurance
Division of property and shared assets, including the family home
Allocation of debts and financial obligations
Spousal support or maintenance
Personal property and belongings each spouse keep
2. What is the difference between a trial and a permanent separation?
A trial separation allows spouses to live apart temporarily while deciding whether to continue the marriage. They may still reconcile during this time.
A permanent separation occurs when the couple decides to remain married but live separately on an ongoing basis. This decision often follows a failed reconciliation attempt or recognition that the relationship cannot continue.
If a couple uses a Separation Agreement during a trial separation, it can remain valid during a permanent separation unless it contains terms that expire after a set period. The couple remains legally married unless they divorce.
3. How does a Separation Agreement affect a divorce?
A Separation Agreement can simplify the divorce process. If both spouses agree to the terms, the agreement can be submitted to the court and may be incorporated into the final divorce order.
Once a divorce is finalized, the terms of the divorce order replace the Separation Agreement. However, the terms in the agreement may influence the divorce judgment if both parties continue to abide by them.
4. How long must spouses be separated before they can divorce?
In most cases, spouses must live separately for at least one year before they can file for divorce. This requirement may not apply in cases involving adultery or abuse.
5. What does “living separately and apart” mean?
Living separately and apart generally means that spouses no longer function as a married couple. This can be true even if they still live under the same roof. Factors that indicate separation may include:
Sleeping in separate rooms
Managing finances independently
Not sharing household duties
Limited communication
No longer engaging in romantic or sexual activity
Eating separately
Couples may continue living in the same home for financial reasons or to provide stability for children.
6. When should a Separation Agreement be used?
Consider using a Separation Agreement if you are:
Preparing for a divorce
Entering a trial separation
Choosing to permanently separate while remaining legally married
It is ideal to create the agreement when both spouses can agree on fair and reasonable terms. Courts are more likely to uphold agreements made without pressure and with full financial disclosure.
7. Who qualifies as a spouse in a Separation Agreement?
Only legally married individuals are considered spouses for the purposes of a Separation Agreement.
8. Can common-law partners use a Separation Agreement?
No. Common-law couples do not use a Separation Agreement, as they are not legally married. Instead, they may use a Cohabitation Agreement or Separation Contract to divide property or address shared obligations.
9. What should be included in a Separation Agreement?
A comprehensive Separation Agreement typically includes the following:
General information
Whether the agreement remains valid after divorce
The province or territory of residence
Marriage details
Marriage date
Location of marriage
Spouse details
Full names and addresses
Whether the spouses are still living at the same residence
Children
Names and birthdates of children
Custody arrangements and visitation schedules
Child support, health insurance, and related costs
Tax credits and benefits
Financial matters
Plans for the family home
Division of assets
Responsibility for debts
Spousal maintenance or support
Additional considerations
Ownership or care of pets
Non-harassment or non-interference clauses (optional)
Any other relevant terms not addressed in standard agreements
10. What happens to debts during a separation?
Debt acquired during the marriage remains a shared responsibility unless otherwise specified. Spouses must decide who will take responsibility for mortgages, loans, credit cards, and other financial obligations.
Typically, individuals are not responsible for debt their spouse accumulated before the marriage. If a prenuptial agreement exists, it may clarify which debts are separate.
11. What are considered assets?
Assets are anything of financial value, and they can be held individually or jointly. Common assets include:
Bank accounts
Investment accounts or trust funds
Vehicles
Real estate and land
Jewelry or valuables
Electronics and household items
Furniture
Pets or livestock
Cash
Intellectual property
12. How do I talk to my spouse about dividing assets?
Begin with open, respectful communication. Be clear about your goals and try to understand your spouse’s perspective. Keeping discussions focused on fairness can lead to better outcomes.
You may choose to work through the agreement together or separately, then meet to review the terms.
13. How should we divide our assets?
Start by:
Creating a list of all assets, including those owned jointly and individually
Estimating the value of each item or property (get professional appraisals if needed)
Agreeing on who will keep what
You may agree to an equal division, or to an alternative that reflects the couple’s specific needs. Large items can be exchanged for multiple smaller items to ensure fairness.
14. Are Separation Agreements legally binding?
Yes, a properly executed Separation Agreement is typically enforceable in court. However, the agreement may be invalid if:
It does not reflect the best interests of any children involved
One spouse did not disclose all relevant financial information
One party signed under pressure, coercion, or without legal understanding
The agreement is significantly unfair
Courts may review and possibly set aside an agreement if these concerns arise.
15. Do both spouses need to sign the agreement?
Yes. Both parties must voluntarily sign the Separation Agreement for it to be legally binding. If one spouse refuses to sign, mediation or legal intervention may be required.
16. What is an arbitrator?
An arbitrator is a trained professional who helps resolve disputes outside of court. Arbitrators often have legal or mental health backgrounds and use a process similar to court but in a private setting.
If a couple cannot agree, the arbitrator may make a binding decision, known as a family arbitration award.
17. How can we avoid involving lawyers or arbitrators?
Open communication and mutual respect are key. Working together to create a fair agreement helps avoid legal disputes. However, it is still advisable to have a lawyer review the agreement before signing.
18. Who can witness a Separation Agreement?
Witnessing requirements vary by province or territory. Generally, a witness must be:
A legal adult
Not a party to the agreement
Some provinces, such as Alberta, require independent legal advice and certification. Others may require notarization.
19. Can a Separation Agreement be changed or revoked?
Yes. A Separation Agreement can be modified or cancelled if both parties agree. Changes must be made in writing and signed by both spouses.
If either party was unaware of significant financial information at the time of signing, or felt pressured to sign, they may challenge the agreement.
Once a divorce is finalized, changes must be made through the court.
20. What happens if the spouses reconcile?
A Separation Agreement can include a reconciliation clause stating what happens if the couple gets back together. For example, it might state that the agreement remains in effect for a set period following reconciliation.