August 3rd, 2021
There are several methods to resolve your separation. Many couples go to court and resolve their divorce either with a lawyer or as self-represented. Individuals also have the option of resolving their separation outside of court by negotiating with their partner and signing different types of separation agreements.
A separation agreement is simply a contract. It is negotiated and signed after a couple has decided to separate. Separation agreements can resolve all the issues between the separating couple or can cover only a few issues. They typically cover issues relating to a property, partner/spousal support, child support and parenting. A separation agreement can also provide a method for resolving future disputes.
There is no “standard” separation agreement so, separating couples can adapt the agreement to fit their own needs and include as much or as little as necessary. Unlike the court process, where individuals must follow specific rules on how to divide property, how to calculate support, and when support can be reviewed, a separation agreement provides individuals more flexibility when negotiating.
A separation agreement can either be an interim separation agreement or a “final” separation agreement. Depending on a separating couple’s needs, they can decide to use an interim separation agreement or a “final” separation agreement or both.
An interim separation agreement is usually used at the start of the separation and can set out how the separation will occur. The focus of the interim separation agreement will be on issues that will arise as parties negotiate their separation, with a view to the short term. An interim separation agreement may cover issues such as:
A “final” separation agreement, which is simply referred to as a separation agreement, is created once the parties are finalizing their separation. If there is an interim separation agreement, couples may decide to use all the terms in their “final” separation agreement or none of the terms. The focus of the separation agreement will be setting out the party’s responsibilities after they separate, with a view to the long term. A separation agreement may finalize issues such as:
Separation Agreements for Adult Interdependent Partners (“Common Law”) vs. Married Couples
A separation agreement for adult interdependent partners (“AIPs”), otherwise known as common-law partners are not very different than separation agreements for married couples. If you want more information on what constitutes an adult interdependent partner, see our other blog post “What is an Adult Interdependent Partner?”. After the introduction of the new Family Property Act on January 1, 2020, AIPs are now entitled to many of the same protections and processes that married couples have.
There are still differences between AIPs and married couples under the law. For example, the federal Divorce Act only applies to married couples whereas the Alberta Family Law Act applies to both AIPs and married couples.
Another important difference between AIPs and married couples are the rights and protections afforded to matrimonial property. The Dower Act only applies to married couples in Alberta and provides protection for the Homestead (usually the matrimonial home). Under the Dower Act, if a married couple owns a matrimonial home, they must have the consent of the other spouse to mortgage or sell the home.
Separation agreements can be useful tools for resolving disputes between couples who are willing to negotiate with each other to find a resolution. Since separation agreements are voluntary, they may not be right for every individual or, for every issue in a separation. Parties can decide to have a separation agreement only covering a few issues and agree to attend court to resolve the remaining issues. If you are deciding whether you should explore a separation agreement, you may want to consider the following:
Section 37 and 38 of the Family Property Act contain very specific requirements for a separation agreement to be enforceable. It can be difficult as a self-represented individual to ensure that all these requirements are followed. The consequence of having an unenforceable agreement can be costly. If you are self-represented and there is already a court proceeding for your separation, you may instead want to consider a consent order.
A consent order can be similar to a separation agreement, with some key differences. A consent order is agreed to by the parties. It addresses certain issues but, unlike a separation agreement, a consent order is not a contract. Instead, the parties come to an agreement and enter a formal order with the court, setting out what the terms of your separation will be.
The consent order can include many of the same terms as the separation agreement but, does not have many of the formal requirements that are necessary for a separation agreement. Another advantage is that, if the consent order is issued by the court, it is automatically enforceable.
If you do not make a separation agreement, many of the terms of your separation may remain undetermined or may be determined pursuant to legislation with possible intervention by the Court. This is often not the result that parties desire.
Are you separating or are you considering separation? In Calgary, contact Anthony Young QC with Young Family Law to discuss whether a separation agreement is right for you. Ensure your property is divided according to your wishes – and not left to Alberta provincial legislation and the Alberta courts. Call Anthony at 403-219-4216 or visit www.youngfamilylaw.ca