This article was written by Linda Rainaldi of the People?s Law School with funding assistance from the Law Foundation of BC.
You don?t need a separation agreement to separate, but if you own a home, have children, or need financial support, you should have a written agreement. In general, it is better to reach an agreement with your partner than having an agreement imposed on you by a judge in court.
When people talk about a ?legal separation? they usually mean they have a formal, written agreement, prepared by a lawyer, about which parent the children will live with, support payments, possession of the family home, ownership of property, payment of family debts, and so on. The separation agreement will say how long it is good for. Some agreements are good until the divorce and some are good for life. Some agreements apply to people even after your death.
Sometimes one of the partners wants to change a term of the separation agreement after it is signed. ?When talking about whether the terms of a separation agreement can be changed at a later date,? says family law lawyer John Anthony, ?we need to talk about fairness. The courts will not enforce an agreement that divides property unfairly.?
A married couple may think they have settled their financial obligations once and for all by signing a separation agreement, but life can take unexpected twists and the couple may end up back in court arguing about the division of property or spousal support all over again.
Let?s take the case of Bob and Mary, who agreed on separation that Bob would buy Mary a home comparable to their old one for $100,000. They began to search for a suitable home, but it wasn?t easy and it took them 10 months to find the right one. Unfortunately, the housing market in Victoria was hot and property values rose by 28% in that time period. A comparable home would now cost $128,000. Should Bob pay the difference? Anthony says, ?The courts may expect Bob to pay the higher price because he had agreed to buy her a certain kind of property and, looking at the overall picture, it was fair that he do so.?
How do you know when an agreement is fair? It?s more likely to be called fair if both parties can be said to have made responsible decisions. If both parties had lawyers representing their interests and there was full financial disclosure between the parties, it will be much harder for one party to later claim that she or he has been put at a disadvantage by the agreement.
So why do people sign agreements that aren?t fair? According to Anthony, the agreement might have been fair at the time it was made, but not one year down the road when the value of assets has changed or the circumstances of one party has changed in a significant way. Maybe the wife lost her job or was involved in a serious accident. ?And, people may sign an agreement just to get it over with or because one partner is very domineering and puts pressure on the other one to sign,? says Anthony.
Anthony has some practical advice for those entering into separation agreements. First, deal with the problem in a business-like way and don?t agree to something because of feelings of guilt or frustration. Second, get good legal advice. Make sure you really understand the legal principles explained to you and insist on full disclosure of all the financial details of the marriage.
Finally, if you do agree to something that may not seem to be fair, set out those reasons in the agreement. Ending the relationship with a divorce means that your partner is no longer a ?spouse? under the Family Relations Act, and cannot challenge the agreement for fairness two years after the divorce. That will provide greater certainty for both people.
The role of a family law mediator will be discussed in a later article.
John Anthony is a partner with Owen & Company in Nanaimo, B.C.
The purpose of this article is educational in nature. It is not intended as legal advice. It offers general information only. If you have a legal problem, you should seek professional advice.