June 18, 2020 | Divorce

Separation/Divorce agreement: Settling should always be your first choice

For those of you wondering if there are alternatives to divorcing in court in Canada, read on!

A Separation or Divorce agreement is a contract between the parties who have decided to settle the their divorce or separation amicably. The agreement can be drafted if you are married or common-law partners, however, if you are married, a separation or divorce agreement by itself will not legally end your marriage.

In order to start the divorce process, you need to issue an Application for Divorce in order for the court to render a divorce judgment.

Just like any other contract, a separation or divorce agreement must be in accordance with public order. The agreement with cover, the partition of the matrimonial regime and the family patrimony, child support, special expenses, custody, access rights, spousal support and any renunciations and/or other specific clauses.

A Separation or Divorce agreement can be drafted at any point in time before or during the proceedings and it is definitely the most cost-effective way to resolve your separation or divorce. In order for the separation agreement to be enforceable you need to issue divorce proceedings in order for the agreement to be homologated (enforceable). A separation or divorce agreement homologated by the court is a court order and it is enforceable and has the same effect as a judgement rendered by a judge after a trial. You can execute on it in the event your ex-partner does not respect the terms of the agreement, that mean seizures after judgment etc.

We always encourage our clients to negotiate and settle their file whenever possible. When the parties decide to settle, their respective attorneys have the role of negotiating the clauses in the separation or divorce agreement to reflect the parties wishes, rights and the best interest of the children. If you succeed in reaching a settlement, everyone wins are you both get to be apart of the solution rather than the court deciding on your behalf.  

Read More: Contemplating divorce : A few things to know

Even though you do not need a lawyer to sign an agreement, it is recommended that you obtain independent legal advice before signing anything. In some cases, one party retains a lawyer and the other decides not too. When only one party is represented by a lawyer, one lawyer drafts the agreement, and the party must be advised of their right to consult a lawyer in order to evaluate the fairness of the agreement.  It is important for the parties to fully understand the consequences of a separation or divorce agreement and not sign anything they do not agree with or that they do not understand. Your consent needs to be free and enlightened, otherwise the consent agreement is null and its validity can be contested later in court. 

The same applies to clauses where you or your spouse are renouncing to your rights. If you are renouncing to the partition (share) of the QPP, RSSP or any private pension plans, make sure you that before you decide to renounce to its partition, you obtain all financial disclosure with the information of your ex-spouses earnings, in order for you to be aware of the exact amount that you are renouncing to.

After the separation or divorce agreement is homologated by the court, you can only request a change if there has been a significant change  in circumstances that were not foreseeable at the time the agreement was drafted. For example with respect to custody, access rights and child support. However, in order to request any modifications, the parties will have to agree on the new terms and have the agreement homologated by the court once again. In the event the parties no longer agree, proceedings will have to be initiated by one of the parties in order to obtain a court order.

If you are considering a separation or divorce agreement with you spouse and would like to obtain legal advice for divorce with respect to your rights, please do not hesitate to contact us and book a consultation.