Signing a Separation Agreement
Why should we go through a process to sign an agreement if my spouse and I have already agreed on everything?
As a family lawyer, a frequent scenario that I am met with is when a party has already agreed on the terms of their separation with their spouse, and simply wish for me to draft up an agreement capturing those terms. Their wish is to have something drawn up quickly, and then sign and be on their way to getting a divorce.
The BC Family Law Act provides general guidelines that agreements should follow:
Spouses may make written agreements to deal with spousal support and to divide family property however they wish (just remember to have each spouse’s signature witnessed by at least one other person).
Spouses who are guardians to a child may enter into an agreement concerning parental responsibilities, parenting time, child support, and other co-parenting details.
If all goes well post-separation and both parties are content with the terms that they agreed upon, then everyone can go on their merry way. Unfortunately, our job as lawyers is to help reinforce an agreement against the possibility of it being overturned or varied if things go awry in the future.
There is no such thing as a ‘bullet proof’ agreement in family law. Courts can intervene and set aside or vary an agreement if:
There has been no or inadequate financial disclosure between the parties;
A spouse did not understand the nature or consequence of the agreement;
A spouse took improper advantage of the other spouse’s vulnerability;
The agreement itself is significantly unfair; and
There are other circumstances that would cause all or part of a contract to be voidable.
In other words, yes spouses can enter into an agreement to deal with the issues of their separation however they wish, but for this agreement to have any weight, spouses will need to go through a process.
The process:
Each spouse should seek legal advice independently (one lawyer cannot represent both spouses);
Financial disclosure should be exchanged (where each spouse discloses all of their properties, financial assets, debts, and other significant items to the other);
The parties should discuss and negotiate the terms;
The agreement is then prepared, either by one parties lawyer or using a self-help guide ;
The agreement is then reviewed and finalized by both spouses with their lawyers;
Each party then signs the agreement with a witness.
Your lawyer will need to get a complete understanding of your situation, take you through the basic law concerning your issues, run through the other options you have for resolving your issues, take you through the worst and best case scenarios, and weigh in on the terms reached.
Once an agreement has been finalized, during the signing, each spouse’s lawyer will also sign a Certificate of Independent Legal Advice confirming that each of you had legal representation and advice in this process, and that you are each signing this agreement voluntarily (and are not being pressured into it).
Together, your lawyer and you will need to weed out the terms that are simply unenforceable and may compromise the integrity of the overall agreement (i.e., for a spouse to waive child support). The goal is to have a relatively balanced result and an agreement that is not significantly unfair to either party. This can be done through restructuring the terms to achieve the desired result but still have a balanced agreement.
We hope this blog has been helpful in answering the question of what the separation agreement process can look like and explain why we simply can’t print out an agreement on demand.
If you have any further questions, and would like to speak with one of our lawyers, please Book a Consultation to get more information.