Many couples settle all issues between them by entering into a written separation agreement. Through such an agreement, they can avoid court proceedings or shorten existing proceedings, except the proceedings needed to obtain the divorce order to end their marriage. However, an agreement cannot change a parent’s legal rights respecting custody of their children under The Family Maintenance Act.
What is included in a separation agreement?
A separation agreement will usually deal with matters such as:
- parenting arrangements (custody and access)
- financial support (child support and spousal or common-law partner support)
- division of family property
- the right to live in the family home
- responsibility for family debts
- estate rights on the death of each spouse
Who can help me develop a separation agreement?
Sometimes, parties work out the main features of their agreement on their own or with the assistance of a mediator. Lawyers can then provide advice and put their agreement in a more detailed and formal document.
Often, couples are unable or unwilling to make an agreement on their own and each party hires a lawyer to bargain or negotiate the terms of an agreement. Sometimes, couples want to cut legal costs by having one lawyer act for both of them. This is not possible. A lawyer can only represent one party in a case.
It is important that both parties have independent legal advice, because a separation agreement is a legally binding contract. If a spouse fails to meet the requirements of the agreement, the other spouse may sue in court. If the agreement is a bad bargain for one spouse (e.g., a spouse gets less property than they would be entitled under the law), a court is unlikely to interfere, although this is a possibility in some cases. For example, the court may set aside an agreement if a spouse convinces the court the agreement was made because of fraud or unfair pressure.
A separation agreement can be more detailed than the usual court order and more tailored or sensitive to the particular family’s needs. However, it is not a court order and can be more costly and difficult to enforce. In Manitoba, in some circumstances, provisions in a separation agreement for the payment of support can be enforced through the Maintenance Enforcement Program. Please visit the Enforcing Support section of this website for more information.