Once you and your spouse have made the decision to separate, drawing up a separation agreement is an important step for resolving uncertainties and settling potential disputes.
The advantage of using a separation agreement is that it clearly describes the obligations of each party right from the moment that the decision to separate has been made.
What is a Separation Agreement?
It is important to note that a separation agreement does not legally end your marriage. The only way to officially end a marriage is with a divorce. However, a separation agreement is still a legally binding document.
The Courts in Ontario have clearly set out that a separation agreement must meet certain criteria to be enforceable. Paramount to these criteria are: full financial disclosure and independent legal advice, that is to say that each party needs to be represented by a divorce lawyer.
Enlisting the help of a family law lawyer is the best way to ensure that you are clear on what the law entitles you to and that the agreement is legally binding. Having said that, the courts will look at other factors to determine if an agreement entered into between parties directly should be enforced on a case-by-case basis.
A separation agreement prepared for use in the province of Ontario will address the following factors:
- property ownership and property division
- child care and support obligations
- child custody and access
- other issues that may become a source of conflict during the separation process
Resolving Disputes
It may be the case that the separating partners do not agree on the conditions outlined in the separation agreement. In situations such as these, collaborative family lawyers, third-party mediators, or an arbitrator may be needed to find a satisfactory compromise.
Collaborative Family Law:
The least disruptive option is to enlist the services of collaborative family lawyers. In these cases, both parties work together, along with their lawyers. This approach relies on both parties being honest and open to discussion to find mutually agreeable solutions.
Mediation:
If it is important to come to agreement through collaboration, a mediator can be used to try to negotiate an agreement that works for everyone. The mediator acts as a go-between – they do not individually represent either of the parties, but work to find a result that both parties can agree to.
Arbitration:
In cases where mediation still does not lead to a breakthrough, arbitration is a process where an arbitrator will make legally binding decisions in the case. It is important to note that once this process begins, it cannot be undone – both parties must respect and adhere to the final decision.
Taking the Case to Court:
The last option is to take the dispute to court. This can stretch into a long and costly process, and typically will add even more fuel to the fire to an already tense emotional situation. In situations where one party or the other is being completely unreasonable or unwilling to budge on various issues, bringing the case to court may be a necessary step in ensuring that the process is fair.
A Fair Agreement
It is important that the separation agreement is not the result of coercion, where one partner is exerting power or influence over the other. If the court deems that a separation agreement has been signed or agreed upon while under any sort of psychological or physical pressure, the agreement will be thrown out. In cases where there is an abusive or unbalanced relationship, it becomes all the more important to consult with a family lawyer so that the separation is fair.
Changing the Separation Agreement
If either party decides later on that they don’t like the terms of the separation agreement, they can attempt to negotiate a new agreement. If the partner declines to renegotiate, it is also possible to ask a judge if the agreement can be changed.
Since a Separation Agreement is a legally binding document, it is important to have a good argument or evidence for why the original document should be made invalid. If new facts have come to light or if it becomes clear that the agreement was signed on dishonest information, there is a chance that a judge will throw the agreement out.
Getting a Divorce
As mentioned earlier, a separation agreement does not legally end the marriage. In order to fully terminate the marriage, you must apply for a divorce.