The end of a marriage is never easy. There are so many issues to sort out. It can be difficult to know where to begin. A common question from clients of our British Columbia family law firm is whether a separation agreement is needed before divorce. In today’s article, our British Columbia family lawyer will explain what you need to know about getting a divorce and how separation agreements factor into the process.
What you need to know about getting a divorce in BC
A divorce order is needed to legally end your marriage. It doesn’t matter how long you have been separated from your spouse—you can be separated for decades, but you’re still not officially divorced from your spouse until a court has issued a divorce order. You can’t get remarried until you are divorced.
In BC, only the Supreme Court can issue a divorce order. You can apply to the Supreme Court for a “no-fault” divorce any time after you separate, but the court will not grant a divorce until you have been separated for at least one year (unless you apply on the grounds of adultery or cruelty, which are difficult to prove).
Do you need a separation agreement before divorce?
The quick answer is no. You don’t need a separation agreement to get a divorce. In fact, if you and your spouse don’t have children and there are no property, debt, or spousal support issues arising from your marriage, you may not need a separation agreement at all. It’s always a good idea to get independent legal advice from a family lawyer on whether or not a separation agreement is necessary/advisable in your particular circumstances.
Should you have a separation agreement before divorce?
There are very important reasons why you should have a separation agreement in place before divorce.
First off, having a separation agreement in place can make the divorce process faster and less expensive. Once you and your spouse have signed a written separation agreement settling issues such as parenting arrangements, child support, spousal support, and property issues, you can apply for an uncontested divorce. That means you can get a divorce without having to set foot in a courtroom. The other major benefit of a British Columbia separation agreement is that you and your spouse get to decide what works best for you (and your children, if you have any). You maintain more control and can explore more creative options when you decide for yourselves.
If you and your spouse can’t resolve all issues arising from your marriage in a separation agreement, you will need to apply for a contested divorce, asking the court to decide unresolved issues for you. The process for a contested divorce—which is also known as a “defended divorce”—is more complicated, more expensive, and it typically takes much longer to obtain a divorce order.
The second reason you should have a separation agreement in place before divorce applies to situations where children are involved. BC family court judges have a duty to ensure that reasonable arrangements have been made for any children, including child support. BC courts will not grant a divorce order without proof that you’ve made arrangements for your children.
A written separation agreement that sets out the agreed upon terms for parenting and child support can be submitted with your divorce application to satisfy the judge that a divorce order should be granted. If you and your spouse can’t agree on parenting terms (time with children, child support, decision-making authority), you will need to bring a family court case in either the BC Provincial Court or the BC Supreme Court to get a court order resolving parenting issues, and then ask the court for a divorce.
A note on time limits
You should be careful about applying for a divorce before you’ve sorted out issues pertaining to spousal support, pension division, and division of property and debt. Once a divorce order has been issued by the court, it starts the clock running on the two-year time limit to start proceedings to resolve those other issues.
The BC Family Law Act sets out that time limit in section 198(2). It states that a proceeding to resolve property division, pension division, and/or support must be started no later than two years after a divorce order has been issued. If you get a divorce order but haven’t yet resolved those issues, you will need to act quickly and keep that two-year limitation period in mind. You lose the right to bring family court proceedings if you wait too long. Note, however, that the running of the two-year time limit can be suspended or “paused” if you are engaged in a family dispute resolution process with a family dispute resolution professional.
GET TRUSTED ADVICE FOR YOUR BRITISH COLUMBIA SEPARATION AGREEMENT
The process of separation and divorce is challenging. Having a negotiated or mediated separation agreement in place can make getting a divorce speedier, less costly, and less stressful. The team at Valerie M. Little Law Corporation can make the process easier by providing invaluable information, legal advice, and support to assist you.
Valerie M. Little is a centrally located New Westminster divorce attorney. We serve the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey, Cloverdale, Delta, Langley, Squamish, Whistler, and the rest of the Lower Mainland.
Valerie M. Little Law Corporation is a family law firm that is centrally located in New Westminster and serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey, Cloverdale, Delta, and Langley.. To schedule your confidential appointment, call 604-526-3333 or email us.