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An image of a separation agreement.

There are ways to make the process of separation and divorce easier. One way is to resolve your family issues by way of a separation agreement. This is one way to streamline the divorce process which can save you time, money and the stress of going to court.

Is a separation agreement necessary to get a divorce? Do you have to sign a separation agreement before you can get a divorce, or are there other options? Let’s have a look at

whether you need a separation agreement before divorce and the options to get a divorce order if you do not have a separation agreement in place.

What is a separation agreement?

A separation agreement is a legally binding contract that stipulates how spouses will handle various issues arising from the breakdown of their marriage, including but not limited to living arrangements, division of property, child support and parenting arrangements. As a legally binding contract, a separation agreement is enforceable by law should one of the spouses fail to fulfill their obligations.

Do you need to have a separation agreement to get a divorce?

No. It is not mandatory to first have a fully executed separation agreement in place before filing for a divorce. The filing of a separation agreement in court does not make the separation agreement “more legal”. There are options to get a divorce if you do not have a separation agreement.

There is a caveat: Canada’s Divorce Act imposes a duty on the courts to ensure that reasonable support arrangements have been made for children of the marriage before the Judge will grant you your Divorce Order. If you and your spouse share children, the Judge will not grant you a Divorce Order until they are satisfied that reasonable arrangements have been made for the care and financial support of your children. This means you must either have a signed separation agreement in place or court order in place that addresses child support in order to get a divorce.

If there are no children of your marriage and there are no property or spousal support issues arising from your marriage, you may not need a separation agreement before you can get a divorce. In this situation, your only claim may be for a divorce. You would still need to apply for a divorce using the usual court process which includes properly filling out, filing, and serving all the necessary court forms.

Are there benefits to having a separation agreement before divorce?

Absolutely. There are several benefits to having a separation agreement before applying for a divorce. First and foremost, the process of negotiating a separation agreement is generally quicker, less expensive and less stressful than going to court to resolve your family law issues. Another major bonus of a negotiated separation agreement? You retain control over the outcome and how your new life will be organized. Not so when you have a judge decide issues for you after a trial in family court. In addition, a separation agreement is a private contract between just the two spouses. If your case is decided in court, any court decisions may eventually be reported and posted to the court’s website and other legal online publications.

Another significant benefit of having a separation agreement is that you can apply for an uncontested divorce. BC lawyers also refer to this as an “undefended divorce” or “desk order divorce.” The uncontested divorce process is much quicker and less expensive than a contested divorce. BC spouses who can not agree about issues arising from the breakdown of their marriage—such as parenting, child support, spousal support, and division of property and debt—must start a court action asking the court to decide these issues for them. It can take a long time to get a trial scheduled which tends to lead to increased stress for you, your spouse, and your children and often more expense.

Options to get a divorce order if you don’t have a separation agreement in place

If you have a separation agreement in place it will allow you to use the more streamlined uncontested divorce process to get a Divorce Order. All is not lost if you do not have a separation agreement. There are other options, which include:

  • Working with a BC divorce lawyer to reach a negotiated settlement of unresolved family law issues. Direct negotiation between the spouses and their lawyers is very often effective at achieving amicable resolution of issues. Once you have a signed agreement, you can use the uncontested divorce process.

  • Mediation, collaborative divorce, and arbitration are also options for resolving family law disputes so you are then eligible to apply for an uncontested divorce.

  • Bringing a family case in Provincial Court or Supreme Court to get orders about parenting and support, then applying in the Supreme Court for an uncontested divorce. Only the BC Supreme Court can grant divorce orders.

  • Bringing a case in Supreme Court to get orders about how to divide property and debt (and/or parenting and support), while also requesting a divorce order. Only the BC Supreme Court can make orders dealing with property and debt. Once you have started the contested divorce process, there are several opportunities, both formal and informal, for you and your spouse to attempt to resolve the outstanding issues thereby avoiding the need for a trial.

Depending on the circumstances, it may also be possible to obtain a Divorce Order before sorting out property and debt issues. For example, if you need a Divorce Order quickly so you can get remarried. If you do decide to travel down this road, be warned of the limitation period: You must apply to divide family property or debt no later than two years after the Divorce Order was granted.

Get trusted legal advice from a British Columbia divorce lawyer

BC family law firm Valerie M. Little Law Corporation has helped thousands of individuals get their divorce finalized in manner that is as pain-free and efficient as possible. Valerie has many years of experience as a BC divorce lawyer and works with a qualified and compassionate team

to ensure you get the best possible service during every step of the way. She is able to recommend the best way for you to finalize your divorce and family matters given your individual circumstances.

Valerie M. Little Law Corporation is centrally located in New Westminster and serves all of Burnaby, Port Moody, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Squamish, Whistler, Richmond, Surrey, Cloverdale, Delta and Langley.

To schedule your confidential appointment, call 604-526-3333 or email her today.

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