- A lawyer is not required to make a separation agreement, but BC government guidance says it is very important to speak to one before signing.
- A court can set aside or replace an agreement where, for example, significant property or debts were not disclosed.
- Parenting and child support terms stay subject to the court's view of the child's best interests and what support order it would make.
If you and your spouse already agree on the main points, hiring lawyers can feel unnecessary. Many people write their own agreement, and the law does not stop you.
The harder question is what you give up by skipping advice. This article explains what is allowed, where self-made agreements tend to run into trouble, and how to reduce the risk.
This article covers the law of British Columbia.
Is a lawyer required?
No lawyer is required to make an agreement. BC government guidance also says no lawyer is required to separate or get a divorce, and in many cases no court hearing is needed for a divorce order if both spouses agree and file the required forms at the Supreme Court.
The same guidance says it is very important to speak to a lawyer before signing a document that settles matters with a spouse, and it recommends independent legal advice before settling parenting, support or property. Independent means each person gets their own advice, rather than sharing one source.
What a homemade agreement can cover
Written agreements can deal with parenting time, contact, child support and spousal support. Spouses can also make an agreement that divides property differently from the default equal-division rules.
To understand what you are agreeing to, it helps to know the starting point. On separation each spouse has a right to an undivided half interest in all family property, subject to any agreement or order, and spouses are responsible for family debt. Property acquired before the relationship, inheritances and gifts from a third party can be excluded property, and a spouse claiming property is excluded must demonstrate it.
- Parenting arrangements
- Child support and spousal support
- Division of property and debts
- Anything you are choosing to do differently from the default rules
Risks of skipping advice
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. The court may decline if the result would not be substantially different from the agreement.
A written spousal support agreement can be set aside on grounds such as non-disclosure, improper advantage or lack of understanding, and the court may also set aside an agreement that is significantly unfair.
For children, you cannot simply contract out of the court's role. A parenting agreement is subject to the child's best interests, and the court must set aside or replace all or part of it if it is not in those interests. A child support agreement can be set aside or replaced if the court would make a different order.
Without advice, it is easy to overlook whether a term is fair, whether you have seen all the financial information, or what you are giving up. Those gaps are exactly what these set-aside rules address.
Time limits and signing
A spouse may apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds. Claims for property or debt division, pension division or spousal support must generally be started within 2 years, running from the divorce judgment for married spouses or from the date of separation for unmarried spouses.
The rules for setting aside property agreements 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.
What to do next
- Share complete information about property, debts and income before you agree.
- Put the terms in writing and have each signature witnessed.
- Get independent legal advice on the draft before you sign, even if you wrote it yourselves.
- Consider filing parenting and support terms: a filed written agreement is enforceable like a court order, but filing is not required for an agreement to be binding.
- Consider family dispute resolution if you are stuck; it is a process used to try to resolve a family law dispute outside court.
Frequently asked questions
Can we write our own separation agreement in BC?
Yes. A lawyer is not required to make an agreement. The guidance still says it is very important to speak to a lawyer before you sign.
What happens if I sign without independent legal advice?
The agreement may still be binding, but it is more exposed to challenge. A court may set aside or replace a property agreement where, for example, a spouse did not understand its nature or consequences.
Do we need to go to court if we agree on everything?
Not necessarily. In many cases no court hearing is needed for a divorce order if both spouses agree and file the required forms at the Supreme Court. A separation agreement itself does not have to be filed to be binding.
Can we agree on child support however we like?
Not entirely. A child support agreement can be set aside or replaced if the court would make a different order. Each parent and guardian also has a duty to provide support for a child.
Sources
- Province of British Columbia – Do I need a lawyer to separate or divorce? — www2.gov.bc.ca
- Family Law Act, Part 5, s.81 — bclaws.gov.bc.ca
- Family Law Act, Part 7, s.164 — bclaws.gov.bc.ca
- Family Law Act, Part 4, s.44 — bclaws.gov.bc.ca
- Province of British Columbia – Is an agreement as good as a court order? — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
An uncontested divorce with us is from $2,126.88, tax included. Third-party fees are extra.