Do You Have to File a Separation Agreement With the Court in BC?

You and your spouse have worked out how to handle parenting, support or property after separating, and you have put it in writing. Now you are wondering whether the agreement has to go to a court before it counts.

The short answer is that filing is usually optional, but it can change how easily the agreement is enforced. This article explains the difference, how filing works, and the limits that apply either way.

This article covers the law of British Columbia.

Is filing required for the agreement to be binding?

No. A separation agreement does not have to be filed or registered with a court to be binding. You also do not need a lawyer to make an agreement, although the government strongly encourages getting advice first.

So an unfiled agreement still matters. The question is what happens if one person stops following it, and that is where filing can help.

Why you might file it anyway

A written agreement about child support or spousal support that is filed in the court is enforceable under the Family Law Act like a court order. The same is true of a written agreement about parenting arrangements that is filed in court.

A filed support agreement can also be enforced through the Family Maintenance Enforcement Program.

How to file

Written agreements on parenting time, contact, child support and spousal support can be filed at a court registry. The Provincial Court Form 26 is the request to file an agreement.

Registry staff can tell you how their process works in practice. If you are unsure which agreement or which court is involved, a lawyer can confirm before you file.

The limits, even when an agreement is filed

• Parenting: an agreement is subject to the child's best interests. If it is not in the child's best interests, the court must set aside or replace all or part of it with an order.
• Child support: the agreement can be set aside or replaced if the court would make a different order.
• Spousal support: a written agreement can be set aside on grounds such as non-disclosure, improper advantage or lack of understanding, and the court may also set it aside if it is significantly unfair.
• Property: the court may set aside or replace all or part of an agreement if a spouse failed to disclose significant property or debts, took improper advantage of the other's vulnerability, or did not understand the agreement's nature or consequences. The court may decline if the result would not be substantially different from the agreement.

The property rules apply to a written agreement with each spouse's signature witnessed by at least one other person. The same person may witness both signatures.

A spouse can apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds.

What to do next

• Put the agreement in writing and have each signature witnessed.
• Decide which parts you want enforceable like a court order, such as support or parenting terms.
• Ask the court registry about filing with Provincial Court Form 26.
• Keep records of the property and debts disclosed when you signed.
• Speak to a lawyer before signing, and get independent legal advice on parenting, support and property.

The government says it is very important to speak to a lawyer before signing a document that settles matters with a spouse.

Frequently asked questions