Area of Law: Family Law
Answer Number: 105
Separation agreementsRegion: Ontario Answer Number: 105
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What is a separation agreement?
A separation agreement is a written agreement between two spouses who have separated or are about to separate. The agreement generally establishes a number of rights for each spouse, including who will live in the family home, how property will be divided, who will pay the family debts, who will make child and spousal support payments, who will have custody of children and what kinds of visitation rights the other parent will have.
Writing a separation agreement is voluntary and is not required under the law to establish a legal separation. With or without an agreement, a separation is legal as soon as two spouses are living separately and at least one spouse does not intend to move back in together. However, a separation agreement resolves most of the issues of separating and makes the separation easier. When possible, spouses who separate should try to reach an agreement and formalize it as a separation agreement as soon as possible. Although reaching an agreement shortly after spouses separate helps the spouses to get on with their lives, separation agreements can be made before or after a formal divorce.
Unlike the restrictions placed on (often referred to as Pre-nups), the parties to a separation agreement can agree on possession of the matrimonial home and, as well, agree on the custody of children and rights of access.
Requirements for a legally binding separation agreement
To create a legally binding separation agreement both spouses must be completely open and honest about their financial situations. This requires a detailed disclosure of their significant assets and liabilities. The agreement must be in writing and signed by each party in the presence of a witness. The agreement must be entered into voluntarily and not under any duress. Each party must understand the agreement. It is in the interest of both parties that each of them receives independent legal advice. Some aspects of the agreement may eventually be subjected to judicial review and in certain areas, particularly where the rights of children are involved, the terms of the agreement can be overridden.
While it is the policy of the courts to uphold separation agreements, practically speaking, it is a good idea that one-sided agreements be avoided. Unfair agreements may tend to create resentments that can lead to court proceedings to change the agreement. Unfair agreements also encourage litigation on marriage breakdown which is the very thing that they are supposed to avoid. Although a separation agreement becomes legally binding once it is signed, the parties can vary the terms by further agreement at any time.
Enforcing a separation agreement
By entering into a separation agreement, each spouse will have the same rights and obligations as if the terms of the separation agreement were ordered by a court. If you are concerned that your spouse is not going to fulfill some of the obligations in the separation agreement, the agreement can be filed with the Family Responsibility Office. By doing this, your agreement can be enforced without cost to you under the Family Responsibility and Support Arrears Enforcement Act. This office is funded by the Government of Ontario and has significant powers to enforce support payment under the agreement. You can also file the agreement with the court pursuant to the Family Law Act. For more information on filing your separation agreement, refer to the Family Responsibility Office or visit your local courthouse.
Who can prepare a separation agreement?
Although it is possible for spouses to prepare their own separation agreement, most are prepared and negotiated by lawyers. The rights and obligations in separation agreements are very important and each spouse should be certain of his or her legal rights before signing. If you are not each represented by a different lawyer when an agreement is prepared, you should at least consult with your own lawyer before signing.
For more information about separation agreements in Ontario, refer to the Ministry of the Attorney General.
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