Although not required, many couples find that a properly drafted Separation Agreement helps them put ‘things’ in order. In British Columbia, a Separation Agreement can be filed in Provincial Court or in the Supreme Court.
Either spouse can start a divorce proceeding in the Supreme Court as soon as it is apparent that the relationship is over, but the order for divorce will not be issued by the Court until the parties have lived ‘separate and apart’ for at least 12 months.
“Living separate and apart” is a term that you need to discuss with your lawyer because it is not as simple as it sounds. This date is important because the Court will look at this date when considering the 1-year of separation, and it may relevant if dealing with real estate, support and pensions.
If the divorce proceeding is commenced by way of filing a Notice of Family Claim (Form F-3), and the 1-year mark is months away, parties can take this time to settle all matters and have their decision carefully documented in the Separation Agreement.
Once you have made the decision to terminate the relationship, and hopefully, both partners are ready to acknowledge that the family restructuring is inevitable, it’s time to address the big issue: your money!
Here are the questions to ask:
1. How will I and my former partner support yourselves and the children?
2. Into which bank accounts will our incomes / wages be deposited?
3. Who will pay which bills and debts?
4. Which bills should be cancelled and what new accounts are necessary (e.g. credit card or utilities)?
5. Who will stay in the house and who will move out?
6. How will the rent or mortgage be paid?
7. What will happen with joint bank accounts?
8. What will happen to the house, car, furniture, and other assets?
The more you and your partner can discuss and agree on these issues together, the easier the separation will be for you both. Some couples can resolve at least some issues on their own, while others engage the services of a Family Mediator.
Of course, there may be decisions where you reach a complete impasse. No matter what, the parties don’t agree whatsoever and there’s nothing left to do except ask the Court to make the decision and use the guidance of your family law lawyer to navigate this stalemate.
There are several practical considerations when you’re separating. Getting things organized will help you feel more in control of the situation and allow you, and your former partner, to focus on resolving important issues:
1. You might consider opening a new post office box and redirecting important mail, especially if you concerns that your spouse may be monitoring your mail for bank statements, letters from your lawyer, and so on.
2. Set up a separate email account and change passwords to any social media, internet banking and other accounts. Often spouses have joint accounts and can keep track of all on-line activity. This may have been appropropriate during the relationship, but not once you have decided to separate.
3. Ensure you have access to funds. You may need to open a new bank account or apply for a separate credit card. You may need to transfer some funds to the new account so that you can continue to pay your bills.
4. Remove from the home important documents (e.g. birth and marriage certificates, passports) somewhere safe. It’s a good idea to make copies.
5. If you feel you may need to leave the home (even temporarily), with limited notice, prepack an overnight bag for yourself and, if you have children, prepack some of their belongings as well.
6. When you do move out, take your personal items including medications and records, personal documents, and any other household contents you wish to keep, as getting them later may be more difficult than expected.
Think of ‘separation’ as a journey into uncharted territory; don’t start this journey without proper preparation and a plan. A family lawyer or a family mediator can help you develop your "plan" so that you know what to expect during this time of transition, stress and possibly, high-conflict.