Separation agreements
Separation agreement lawyer in Surrey, BC
A separation agreement is a written contract that settles property, debt, support and parenting arrangements when a relationship ends. It is binding once both people sign it, and it can be filed with the court so the support terms can be enforced the same way an order can.
We draft separation agreements, review agreements prepared by the other side, and provide independent legal advice where your spouse's lawyer has done the drafting. Mandy Shergill is both a lawyer and a mediator, so where an agreement is still being negotiated there is often a faster route than exchanging letters.
The short version
The agreements that survive are the ones built on full financial disclosure, where each person had their own lawyer and understood what they were giving up. Those three things are also the main reasons a court sets an agreement aside, so the care taken at signing is what protects you later.
Is a separation agreement legally binding?
Yes. Under the Family Law Act a written agreement, signed by both people and witnessed, is binding. It does not need a judge's approval to take effect and it does not need to be filed anywhere to be a contract between you.
Filing does change one thing. A child support or spousal support agreement filed with the court can be enforced as though it were an order, which matters if payments stop. Property terms are enforced as a contract.
What has to be in a separation agreement?
The agreement should cover the separation date, parenting time and decision making responsibility for any children, child support including special and extraordinary expenses, spousal support or a release of it, division of family property and family debt, the family home, pensions and registered accounts, and how future disputes will be handled.
It should also record that both people made full financial disclosure and had the chance to get independent legal advice. Those recitals are not decoration. They are what a court looks at years later if one person tries to set the agreement aside.
Do we both need our own lawyer?
One lawyer cannot act for both of you. Your interests are opposed, even where you agree on the outcome. What happens in practice is that one person's lawyer drafts, and the other person takes the draft to their own lawyer for independent legal advice.
Independent legal advice is not a signature exercise. It means someone explains what the agreement gives you, what it takes away, and what you would likely receive if you did not sign. An agreement signed without it is materially easier to challenge.
When can an agreement be set aside?
Section 93 of the Family Law Act sets out the grounds for property and debt terms. A court may set an agreement aside where a person failed to disclose significant property or debts, took improper advantage of the other's vulnerability, ignorance or need, or where a person did not understand the nature or consequences of the agreement.
Spousal support terms are reviewed under a similar test in section 164. The pattern behind almost every successful challenge is hidden assets or a signature obtained under pressure. Disclose everything, take the time, and the agreement holds.
Can an agreement be changed later?
Yes, by a further written agreement signed by both of you. Property division is generally intended to be final, so it is not revisited simply because circumstances changed.
Child support and parenting terms are different. Child support follows the payor's income and can be adjusted as that income changes. Parenting arrangements are always measured against the best interests of the child, so a schedule that suited a four year old is expected to change.
“She is extremely knowledgeable, and an experienced family law lawyer. I would highly recommend her to those who are looking for an experienced family law lawyer to deal with all family law matters.”
How we can help
- 01 Drafting a full separation agreement covering property, debt, support and parenting
- 02 Reviewing an agreement your spouse or their lawyer has prepared, before you sign
- 03 Independent legal advice, with a written certificate for the other side's file
- 04 Financial disclosure, including exchange of Form 8 material where it is needed
- 05 Mediation where the terms are still being negotiated
- 06 Filing support terms with the court so they can be enforced
- 07 Applications to set aside or vary an agreement that was signed unfairly
The path a matter takes
Every file is different, but the shape is usually the same. Timings are typical, not promised.
01
First conversation
What has happened, what you want, and what the law actually allows.
Week one
02
Disclosure
Income, property and debt on the table for both sides. Nothing moves without it.
Weeks 2-8
03
Negotiation or mediation
Most matters resolve here, in writing, without a courtroom.
Months 2-6
04
Agreement or order
Terms signed, or filed with the court so they can be enforced.
On resolution
Frequently asked questions
Is a separation agreement legally binding in BC?
Yes. A written agreement signed by both people and witnessed is binding under the Family Law Act, without a judge approving it. Support terms can also be filed with the court so they are enforceable in the same way as an order.
Do we both need our own lawyer?
One lawyer cannot represent both of you. Usually one lawyer drafts and the other person obtains independent legal advice on the draft. Skipping that step is one of the most common reasons an agreement is later challenged.
What has to be included?
Separation date, parenting arrangements, child support, spousal support or a release, division of family property and debt, and the family home. It should also record that both people made full financial disclosure.
Can a separation agreement be changed later?
Yes, by a further signed agreement. Property terms are meant to be final. Child support and parenting terms can be revisited as income and the children's needs change.
What if my spouse will not sign?
You cannot force a signature. The options are mediation, negotiation through counsel, or a court application for the orders you are seeking. In many cases the existence of a filed application is what moves a stalled negotiation.
Does the agreement have to be filed with a court?
Not to be valid. File it when you want the support terms enforceable as an order, which is worth doing whenever ongoing payments are involved.
How long does it take to get an agreement done?
Where disclosure is complete and the terms are largely agreed, a few weeks. Where disclosure is incomplete or the terms are contested, it depends entirely on how quickly the outstanding issues are resolved.
What makes an agreement get set aside?
Failure to disclose significant property or debt, improper advantage taken of a person's vulnerability or need, or a person not understanding what they signed. Full disclosure and independent legal advice are the practical protection against all three.
This page is general information about family law in British Columbia. It is not legal advice for your situation, and the law changes. Speak with a lawyer about the facts of your own matter.
