Parties who are cooperative and who have never married can resolve all of their matters by way of a separation agreement. A married couple can also resolve all of their matters by way of a separation agreement, with the exception of a divorce. To get a divorce an additional step must be taken, namely an uncontested divorce.
A separation agreement is a contract between the parties and follows a basic format:
The Preamble which sets out facts upon which both parties are relying in coming to their agreement. Common facts stated in the preamble include the date of separation, the parties’ respective incomes and whether they have any children.
Common provisions are not unique to the parties and are found, with slight variation to the wording, in all separation agreements regardless of the lawyer who drafted it. These provisions include agreements acknowledging that the agreement is final, that adequate financial disclosure has been made and that each party has received independent legal advice.
Party specific provisions are unique to the parties and, while they are generally found in all agreements, the wording is unique to the situation. These provisions include agreements relative to care and control of children, child support, spousal support and division of family property.
Once the parties have agreed on all of the terms in the separation agreement it is executed along with any other documents that give effect to the agreement like land transfer documents and investment waivers/transfers. A separation agreement can be registered with the court to enforce child support provisions for example, and when registered has the same effect as court order. A separation agreement is also used as “minutes of settlement” for the purposes of an uncontested divorce.