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What Should Go Into a Separation Agreement? Guide by a Lawyer


“I’ve never walked out from a court session with him disappointed…

Barry really saved my life and my son in that situation”

Separation Agreements

The decision to separate is never an easy one–requiring emotional resilience from both parties involved. A court case can add fuel to the fire, resulting in matters being dragged out with no definitive solution in sight.

In cases like these, a separation agreement can be the most effective way to help reach a consensus. This is further outlined in the Family Law Act of Ontario, which states that parties that can agree on the terms of their separation may do so outside of court within an enforceable contract. Matters like child custody, division of assets, and spousal support can all be finalized without stepping foot in a courtroom.

In this article, we will outline what should go into a separation agreement, while also shedding light on the benefits of such an agreement and the difference between separation and divorce. 

What Is a Separation Agreement?

A separation agreement is a written contract drafted by two partners seeking separation from each other. This document outlines the terms of the couple’s separation, discussing matters like child support, division of assets, medical insurance, and custody in detail without involving the court.

This contract is legally binding, requiring the signatures of both parties in the presence of witnesses to be deemed enforceable. Whatever is agreed to in the separation agreement must be followed by both parties. In the case one party fails to uphold any terms outlined in the contract, the other party is allowed to take legal action.

Who Uses a Separation Agreement?

Separation agreements are often drafted by married couples who have already decided to divorce but would prefer their divorce proceedings to be uncontested. A signed separation agreement attached to a divorce application may make the process easier in court. 

Couples who want to separate for a brief time may also use a separation agreement to avoid unnecessary conflict. In this scenario, a separation agreement can work to keep the peace as both parties decide whether or not to continue their relationship.

Benefits Of Drafting a Separation Agreement

Benefits Of Drafting a Separation Agreement

A separation agreement is not only easy to draft but highly advantageous for ex-partners navigating the breakdown of their relationship. 

Below are some of the many benefits of drafting a separation agreement.

  • You Maintain Control: During a separation carried out in court, the judge will have the authority to decide on rulings related to asset division, custody, and support payments. In a separation agreement, however, you can add whatever terms you want and make it legally binding.
  • Clarity For Both Parties: Partners entering into a separation for the first time are often confused about what the next steps may be. A separation agreement can provide clear documentation, helping both parties understand their rights and responsibilities during the separation period.
  • Avoidance of Lengthy Legal Proceedings: Court cases for separation and the legal procedures associated with them can take weeks or even months to come to a decision. Drafting a separation agreement with your ex-partner can help avoid this hassle.
  • Conflict Resolution: A separation agreement establishes a framework for resolving disputes and disagreements. This also reduces the likelihood of legal battles in the future by addressing potential issues upfront.
  • Privacy: Deciding the terms of separation in court can lead to the publicizing of private affairs in front of a judge or jury. Drafting a separation agreement avoids this, ensuring that the personal matters of a couple are not disclosed without consent.
  • Limited Emotional Distress: The breakdown of a relationship is an emotionally draining ordeal in itself. Finalizing decisions amicably without the involvement of a court can help limit emotional distress.

What Should Go Into a Separation Agreement

As separation agreements are drafted by ex-partners themselves, the contents of the contract are largely flexible. However, there are some key matters every separation agreement should discuss in detail.

Separation Agreement

Date of Separation

The exact date of separation should be one of the first things mentioned in your separation agreement.

The Ontario Divorce Act states that a couple must live “separately and apart” for at least one year before being eligible to file for divorce. This distinction is made to include couples who decide to separate but continue to live within the same house. In cases like these, an agreed-upon date of separation is vital for future discussions in court.

Child support and spousal support payments also begin when a couple is separated, so a date of separation is crucial in calculating the amounts owed.

Division of Assets and Debts

A couple may have assets such as a family residence or vehicles that were bought together. Hence, they need to be split in a way that both partners are satisfied. You should outline who will get the title, the costs of the name transfer, and who will make any payments related to maintenance and insurance in the future.

Any debts incurred on these assets, such as a mortgage or car loan should also be addressed within the separation agreement, outlining payment plans for both parties. Joint accounts and credit cards should also be separated and mentioned.

Spousal Support/Alimony

In some cases, one spouse earns the majority of the money while being married. After a separation, the dependent spouse may be in a difficult financial position, and hence entitled to receiving spousal support until they can get back on their feet.

Ex-partners can decide an amount for alimony themselves and include this in the separation agreement. Details like the frequency of payments, how the money will be paid, and the duration of support should all be explicitly mentioned.

Decision-making Responsibility and Visitation

If a separated couple has children, deciding which partner has decision-making responsibility/ custody is crucial.

Ontario Family Law outlines four types of decision-making responsibility, namely sole, joint, shared, and split. Your separation agreement should mention which type of guardianship will be followed, discussing the rights and responsibilities of both the custodial and noncustodial parent. 

In case you have opted for one parent to have sole decision-making responsibility, make sure to outline a visitation schedule for the other parent.

Child Support

A parent who does not have custody of their child may be required to pay child support to the custodial parent. A couple drafting a separation agreement should include which party is liable to pay child support, the amount they will pay, the frequency of payments, as well as how the amount will be paid (e.g. cash or cheque). 

You should also mention what should happen to the payments in certain situations, such as if the child turns 18, gets married, takes on full-time employment, or stops living with the custodial parent.

Dispute Resolution

In case you and your ex-partner fall into a dispute over any of the terms mentioned in the separation agreement, it is best to mention a line of action for resolution.

You can add mediation or arbitration clauses for disputes regarding income, child visitation, or other issues. Specific procedures can be outlined for effectively resolving disagreements between ex-partners.

Separation vs. Divorce: Understanding the Difference

Separation vs. Divorce

A separated couple is a legally married couple that is living apart. Creating a separation agreement or separating from your ex-partner in any other way does not legally end the marriage; only obtaining a divorce can do that. 

A couple seeking divorce must first show proof of living separately and apart for at least one year. Only in the case of adultery or cruelty may this one-year rule be waived.

A couple can remain separated for many years before obtaining a divorce. Oftentimes, the only reason a couple chooses to go forward with divorce proceedings is in the case of remarriage, which can only be done once the marriage has been legally dissolved.

Final Word

Drafting a separation agreement with your ex-partner can help provide you with clarity during the process of separation. 

You can personalize your separation agreement to include whatever decisions work best for you and your family, all without the hassle of legal procedures.

If you’re in Toronto and in search of expert legal guidance, reach out to an experienced separation lawyers to help get all your questions answered.

Key takeaways:

▪ A separation agreement is a contract outlining the terms of a couple’s separation, discussing matters like child support, division of assets, medical insurance, and child custody.
▪ Separation agreements may be drafted by couples planning to make divorce proceedings easier as well as those who want to avoid unnecessary conflict during separation.
▪ Benefits of drafting a separation agreement include maintaining control, clarity for both parties, avoidance of lengthy legal proceedings, conflict resolution, privacy, and reduced emotional distress.
▪ Your separation agreement should include the date of separation, division of assets and debts, spousal support, child support, decision-making responsibility, and dispute resolution.
▪ The difference between a separation and divorce is that a divorce is a legal dissolution of marriage while separation is a legally married couple living separately from one another.

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:January 29, 2024