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Do You Need a Separation Agreement Before Divorce?

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A woman's right hand is holding a black pen and signing a separation agreement on the table with a gavel and wedding rings on the side. There is a woman in a gray-colored long-sleeve shirt and a man in a white collared shirt that is sitting beside each other at the opposite side of the table.

Divorce is a difficult time for everyone involved. And, your family lawyer can help alleviate the stress that often comes along with divorce. The divorce process includes many different steps—and understanding them can be challenging.

Let’s explore if you need a separation agreement before filing for divorce and how the process works. 

What Is a Separation Agreement?

A separation agreement is a legal contract between a couple, a written record of how they have settled issues related to their separation. A separation agreement is a faster and usually less expensive way to resolve issues rather than going to court.

A separation agreement can include details such as:

  • How you will divide property
  • How you will divide debts
  • Living arrangements
  • Custody (parenting) of children
  • Child support payments
  • Any spousal support related matters. 

It is an excellent idea for each partner involved to get advice from their family law lawyer to go over the details of a separation agreement. 

If you and your partner disagree on certain issues of the separation agreement, you may need to go to court, so consulting your family lawyer beforehand can save you some time and stress.

A male lawyer in a black colored suit is mediating between a man in a light blue coloured long-sleeve shirt and a woman in a white long-sleeve shirt.  A  gavel and wedding rings are on the table.

Is a Separation Agreement Required Before Divorce?

A question many people can have is if a separation agreement is required before divorce. The answer is no—you do not need a separation agreement before divorce. However, if you have children, you need to provide evidence that financial arrangements have been made to take care of the children.

While it is advised to review the grounds for divorce in a separation agreement to cover all the different factors, you can file for divorce without doing so. 

There are 3 legally accepted grounds for divorce, according to the Divorce Act of Canada: 

  • One-year Separation
  • Adultery
  • Cruelty

Separation is when you and your partner have lived apart for at least 1 year before the court makes a divorce judgment. A separation agreement is not required at this time. However, it can result in lengthy court proceedings to decide all the separation factors should one not enter into a separation agreement in advance of finalizing a divorce.

What Is an Uncontested Divorce?

An uncontested divorce can also be a viable option for individuals who have settled their issues through a separation agreement or other avenues.

An uncontested divorce is when the following issues have been settled: 

  • Custody
  • Parenting access
  • Support

A separation agreement can fast-track the process and help both sides come to an agreement quickly.

Preparation Is Key

Divorce is complex and challenging to manage for all parties involved, and a separation agreement can alleviate some of the stress that comes along with the process. While not required before a divorce, your family lawyer can help draft your separation agreement to fast-track the process. Contact your family lawyer at KH/Dunkley Law Group to address your questions or concerns about separation agreements and divorce.

Written by Khalil Haji

Khalil is the principal lawyer of KH | Dunkley Law Group. He is experienced in all areas of the law serviced by KH | Dunkley Law Group, with extensive experience in residential and commercial real estate transactions, commercial financing transactions, development and condominium law, mobile home transactions, leasing, purchases and sales of businesses, contract drafting, and wills and estate administration.
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