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separation agreements.

In BC, you and your married or common-law spouse become separated as soon as you start living apart, or as soon as your relationship is no longer “marriage-like” in terms of several factors including, for example, where your sleep, how you conduct your finances, and how you hold yourself to the public. You are not required by law to get your spouse’s permission to separate, nor do you need to sign a document or go to court. In some instances, couples choose to live in the same residence (often for the children) and they will still be deemed separated if they no longer share things like meals, a bedroom, and social activities.

If you’re not married to each other, you will not be required to obtain a divorce order. If you are married, you’ll be legally married until you get a court order for divorce.

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what are separation agreements?

A separation agreement is a legal contract that outlines how two individuals have chosen to settle their financial and child parenting matters following a separation. It addresses various issues to ensure a clear and fair resolution. Common elements included in a separation agreement are:

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  • Parenting Arrangements: Establishing parenting roles and decision-making responsibilities.

  • Division of Family Property: Dividing assets and family property.

  • Valuation Considerations: Calculating the value of assets excluding pre-relationship gifts and inheritance.

  • Family Debts: Dividing any family debts.

  • Spousal Support: Determining entitlement, amount, and duration of spousal support payments.

  • Child Support: Setting terms for child support payments.

  • Tax Planning: For higher net worth cases, addressing tax planning and associated costs.

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A well-drafted separation agreement helps both parties reach a clear and mutually acceptable resolution, ensuring all critical aspects of the separation are addressed.

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what are the requirements of BC separation agreements?

To be valid under the BC Family Law Act, a separation agreement must meet the following criteria:

  • Written Form: The agreement must be in writing.

  • Signatures: Both spouses must sign the agreement.

  • Witnessing: The agreement must be witnessed. In some cases, spouses may witness each other’s signatures.

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Ensuring these requirements are met helps to make the separation agreement legally enforceable and recognized by the courts.

do i need a lawyer?

While it’s possible to draft a separation agreement without legal assistance, we strongly recommend hiring a lawyer to ensure the agreement is valid and comprehensive. A well-prepared separation agreement requires:​​

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  • Full Disclosure: All financial and personal information must be fully disclosed.

  • Fair Negotiations: The agreement should result from fair negotiations, free from undue influence.

  • Independent Legal Advice: Both parties should receive independent legal advice to ensure they fully understand their rights and obligations.

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Homemade agreements often fall short and can be easily challenged. If your ex disputes the agreement by claiming a lack of understanding or inadequate legal advice, it may be set aside.

Investing in legal assistance provides peace of mind. Your lawyer will:

  • Advise on the Law: Help you understand the legal implications and protect your rights.

  • Draft the Agreement: Ensure the document accurately reflects the agreed terms.

  • Include Legal Clauses: Incorporate necessary references to the Divorce Act and the Family Law Act to safeguard your legal interests.

can my partner and i have the same lawyer?

Each party in a separation agreement must have their own legal representation; sharing the same lawyer is not allowed. To manage legal fees effectively, one lawyer can draft the separation agreement, while the other party should seek independent legal advice from a different lawyer who is not affiliated with our team at Legalbird.

This approach ensures both parties receive fair, unbiased advice while keeping costs manageable.

what documents do you need?

To ensure your separation agreement is valid and enforceable, it’s crucial to fully disclose all details of your assets, property, income, and finances. Failing to provide complete information can lead to the agreement being canceled or set aside if your spouse discovers undisclosed assets or inaccuracies.

Both parties should have their financial documents organized. Your lawyer will need the following:

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  • T1 Income Tax Returns

  • Most Recent Pay Stubs

  • Documents for Owned Properties (e.g., Mortgage Agreements)

  • Documents for Pensions, Retirement Savings, and Life Insurance Policies

  • Documents for Debts (e.g., Credit Cards, Lines of Credit, Education Loans)

  • Company, Trust, and Professional Practice Financials

  • T2 Corporation Income Tax Returns

  • T3 Trust Income Tax and Information Returns

  • Bank and Investment Account Statements

  • Professional Valuations (e.g., Real Estate, Trusts, and Business)

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Providing these documents allows your lawyer to accurately assess your financial situation and obligations, ensuring a fair and comprehensive separation agreement.

does the separation agreement need to be filed in court to be binding?

No, a separation agreement does not need to be filed in court to be legally binding in British Columbia. Once both parties have signed the agreement, it becomes a binding contract. Filing the agreement in the Provincial Court of British Columbia or the Supreme Court of British Columbia is optional and depends on the issues involved. While filing is not required, it is highly recommended to have a lawyer draft the agreement to ensure fairness and legality. Unfair agreements can be challenged or set aside under common law or if deemed “unfair” or “significantly unfair,” depending on when they were signed.​

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