Separation Agreements Spell Out Terms of Separation
Separation Agreements are the most common domestic contracts negotiated between couples. These formal agreements form the framework for the financial and parenting arrangements between the parties upon separation and divorce, and often for years to come.
In order for two parties to enter into a separation agreement they must have cohabited and must now be living separate and apart. Although physical separation is a strong indicator, parties will be deemed to be living separate and apart under the same roof if the court considers them to be living separate and independent lives.
Unlike a marriage contract or cohabitation agreement, a separation agreement can provide for custody and access to children in addition to all the rights and obligations that can be dealt with under those domestic contracts i.e. property division, child and spousal support, and any other matter in the settlement of their affairs.
A court may disregard custody provisions in a separation agreement in accordance with s.56 (1) of the Act where it is in the best interest of the child to do so, since the court always reserves jurisdiction where children are concerned. In addition, the court may disregard a child support provision in a domestic contract which is not in accordance with the Child Support Guidelines.
Parties can negotiate the terms of a separation agreement quite amicably with the assistance of counsel. It does not have to be a war, and litigation does not even have to be commenced. In some circumstances, it might be appropriate to litigate in tandem with negotiation, for example in order to get the matter on a timetable, but that is not always the case.
In order to be valid and upheld at a later date, a separation agreement (like other domestic contracts) must be in writing, signed by the parties, witnessed and supported by full and accurate financial disclosure. This disclosure normally takes the form of a sworn financial statement accompanied by a financial brief with all of the supporting documentation.
Each party is represented by separate counsel; one lawyer cannot act for both sides because the parties are adverse in interest. If one spouse is not represented by a lawyer throughout the negotiation, s/he must at the very least obtain independent legal advice prior to signing the agreement.