Brandon Sun - PRINT EDITION
What’s a separation agreement? Do we have to have one to get divorced? Does the judge have to approve it? Is it legally binding?
These are some very common questions when it comes to a separation agreement.
The Divorce Act allows a couple to get a divorce after they have been separated for one year. They do not need to do or file a separation agreement. Most couples will not have one at all.
It is, however, a good option for couples who want to put their terms of settlement into a binding legal contract between them.
A separation agreement can confirm the terms of settlement on custody, child support, spousal support, asset and debt division, the marital home, pensions, life insurance, corporations etc. Because it is drafted by clients and their lawyers, it can be as long or as short as they like, as detailed or general as they want, and can involve any number of topics that are not properly in a court order. There are things, such a full and final waiver of spousal support, that can only appear in a separation agreement, and not a court order.
There are templates available for purchase (or even for free) on line for couples to do their own separation agreement.
As with any contract, not having a lawyer draft and execute the document can mean the document ends up not legally binding at all and important matters are left out, but it can be a tool to open the discussions between the spouses.
An agreement is highly recommended if there will be any ongoing relationship for the couple, such as if they plan to continue owning the marital home or a business together. If so, some ground rules will be necessary to prevent problems later.
A judge does not have to approve a separation agreement, although if one spouse comes forward later to challenge the agreement and there are problems with it, a judge does have the authority to set it aside, in whole or in part.
For example, if it is unconscionable, was signed under duress or had insufficient financial disclosure, it can be overturned by a judge. As well, if the spouses did not have independent legal advice before they signed the agreement, it may be difficult to argue that it is legally binding. People cannot waive their rights unless they know what those rights are.
The parts of a separation agreement as they relate to children — custody, access, child support — can always be reviewed or changed by a judge. The court has a final say over child matters and can overrule the parents’ contract.
For example, if the agreement says that the non-custodial parent will not pay child support, the custodial parent can go to court later and ask for support, and the judge can disregard the agreement in favour of the best interests of the children.
For that reason, if there’s a justification for no support being paid (such as the non-custodial parent transferring an RSP as lump sum support) it needs to be explained in the agreement.
It is also important to remember that a separation agreement is only binding on the spouses who sign it. They cannot create obligations for third parties. A clause saying that the wife will be solely responsible for the joint loan at the bank is not binding on the bank. They can still pursue the husband pursuant to their own contracts signed with both spouses.
» Jodi Wyman is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition October 20, 2012
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What’s a separation agreement? Do we have to have one to get divorced? Does the judge have to approve it? Is it legally binding?
These are some very common questions when it comes to a separation agreement.
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What’s a separation agreement? Do we have to have one to get divorced? Does the judge have to approve it? Is it legally binding?
These are some very common questions when it comes to a separation agreement.
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