What Is a Separation Agreement in British Columbia, and Is It Filed?

When a relationship ends, many people reach an understanding about the children, money and the home. A separation agreement is the written record of that understanding. The usual worry is whether it only counts once a court has seen it.

This article explains in plain words what these agreements generally cover, whether filing is required, what filing adds, and where an agreement can still be challenged. It is general information for British Columbia, not advice on your own situation.

This article covers the law of British Columbia.

What a separation agreement usually covers

A separation agreement is a written deal between spouses who are separating. Under the Family Law Act, a spouse is someone who is married, or who has lived with another person in a marriage-like relationship for a continuous period of at least 2 years. There is also an exception: outside property and pension division, an unmarried person who has lived in a marriage-like relationship and has a child with the other person counts as a spouse even without 2 years together.

The agreement can deal with several different subjects. Each one is governed by its own part of the Act, which matters when you ask whether it can be filed or changed.

• Parenting arrangements, including parental responsibilities and parenting time, which only a guardian may have.
• Child support.
• Spousal support.
• Division of property and debt.

Does it have to be filed with a court?

No. A separation agreement does not have to be filed or registered with a court to be binding. Two people can sign it, keep their copies, and follow it. No lawyer is required to separate either.

For property, the Family Law Act rules that let a court set aside a property agreement apply to a written agreement where each spouse's signature is witnessed by at least one other person, and the same person may witness both signatures. How this applies to your own agreement depends on your situation, so it is worth confirming with a lawyer.

What filing adds: enforcement

Filing does not make an agreement valid. It makes it easier to enforce. A written agreement about child support or spousal support that is filed in the court is enforceable under the Act like a court order. A written agreement about parenting arrangements that is filed in court is likewise enforceable as if it were an order of the court.

BC government guidance explains that written agreements on parenting time, contact, child support and spousal support can be filed at a court registry to be enforced like a court order, and that a filed support agreement can also be enforced through the Family Maintenance Enforcement Program. The Provincial Court Form 26 is the request to file an agreement.

When an agreement can still be set aside

A signed agreement is not always the last word. A parenting agreement is subject to the child's interests: if it is not in the child's interests, the court must set aside or replace all or part of it with an order. A child support agreement can likewise be set aside or replaced if the court would make a different order.

The Supreme Court may set aside or replace all or part of a property 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, among other grounds. A written spousal support agreement can be set aside on similar grounds, and the court may also set aside a support agreement that is significantly unfair.

Spouses are free to divide property differently from the default equal split if they agree to it. That freedom is why full disclosure and understanding matter so much.

What to do next

• List what the agreement needs to cover: parenting, child support, spousal support, property and debt.
• Exchange full information about property and debts before signing.
• Have each signature witnessed and keep a signed copy each.
• Decide whether to file the parenting and support terms so they can be enforced like an order, and check the registry's requirements for the Form 26 request.
• Speak to a lawyer before signing, since BC government guidance says this is very important when settling matters with a spouse.

Frequently asked questions