How to Create a Strong Separation Agreement in BC

Learn how to create a strong Separation Agreement with confidence.

When you create a legal Separation Agreement, you outline your property distribution decisions, parenting time arrangements, and Child and Spousal Support agreements so that when you file for divorce, the court sees that you have a clear plan and a fair agreement.

After you learn what a legal Separation Agreement is and why you need one, it’s important to learn how to create a strong and reliable agreement.

How to create a Separation Agreement in BC

With your own lawyer: You can have your lawyer create a Separation Agreement. Keep in mind this means the lawyer will draft an agreement as a non-neutral party, writing the agreement on your behalf, with your rights and responsibilities in mind.

With a lawyer-mediator: A lawyer mediator can draft a Separation Agreement as a neutral party based on the agreements made during the mediation process.

DIY Template: People can create a Separation Agreement with a free generic template found online.

DIY Platform: You can use an intuitive family law platform like Divii, which is designed to help people create a tailored Separation Agreement on their own.

Creating a Separation Agreement can feel overwhelming, but with the right approach, you can develop a high-quality, fair agreement that protects your interests while keeping the process efficient and affordable. Whether you're working with a family lawyer, mediator, Divii, or another family law platform, understanding the essential elements of creating a strong Separation Agreement will help ensure your document holds up legally and provides the security you both need during and after your separation.

Drafting your own Separation Agreement vs a family lawyer drafting your agreement

Whether you are using a platform like Divii or a lawyer to create a formal agreement, to create a strong agreement, you need to ensure you are addressing the necessary family law issues that apply to your situation. Using a lawyer vs a DIY Agreement platform, doesn't matter as long as it's done right.

This means that you've accounted for all your financial property decisions and addressed Child Support, Spousal Support, as well as Parenting Time and co-parenting arrangements. A strong agreement addresses all of these issues as well as any other matters that apply to your situation.

What makes a Separation Agreement fair and legally binding?

When creating a Separation Agreement, fairness is usually measured in two ways: legal fairness and personal feelings of fairness. Both matter. What feels fair to one person may not feel fair to the other, and an agreement that ignores either perspective is more likely to lead to conflict or regret later.

A strong Separation Agreement is built on informed decision making. This means understanding what is considered fair under the law, while also recognizing and respecting each other’s needs, priorities, and long term goals. Legal fairness provides a foundation and personal fairness helps ensure both people can live with the outcome. The goal is not perfection, but an agreement that both parties understand, accept, and feel comfortable moving forward with.

Both parties should be able to say that the agreement reflects informed choices and was reached through a fair process. In practical terms, this means creating a plan that balances legal standards with real life needs, so the agreement works not just on paper, but in everyday life.

What does it mean to “enter the agreement fairly”? This is a phrase that comes up often during the agreement process. Entering into an agreement fairly means understanding your legal rights and responsibilities before signing. It means you knew your options, had the information you needed to make decisions, and were not pressured or coerced into agreeing to terms you did not understand or accept.

If an agreement is later challenged in court on the basis that it is unfair, a judge will typically focus on two key questions. First, was there full financial disclosure? This confirms that all relevant financial information was shared and that both people understood the full financial picture at the time the agreement was made. Second, did each person receive independent legal advice? This demonstrates that both parties understood their legal rights, options, and the consequences of the decisions they made.

A Separation Agremeent is "fair" when all the relevant details and documents were exchanged transparently and you understand the meaning of the Agreement and the legal consequences of your decisions

If a court finds that an agreement, or part of an agreement, is unfair, it has the authority to review and set aside those provisions. Understanding this upfront allows you to plan properly and reduce the risk of having to revisit or renegotiate the agreement later, which can involve additional time, further mediation, and increased legal costs.

Aspects of Legal Fairness

No. 1: Compile complete financial disclosure

Why full financial disclosure matters

The foundation of any strong, legal Separation Agreement is complete financial transparency and full financial disclosure. All financial information must be disclosed. This means there can be no forgotten items, secret bank accounts, or omitted assets. This requirement isn't just good practice, it’s a required part of the process of creating a fair Separation Agreement.

At its core, a Separation Agreement is a snapshot of your life at separation and a clear plan for how each piece moves forward.

You want to make sure that you have all the information and the right information documented because your agreement serves as a statement of your income and a listing of all of your assets and debts at the time your agreement was made. You may decide to exclude things from the property distribution calculation or decide not to split other things, and that's okay, but you should disclose them and account for them in your Separation Agreement. This means any exclusions from the property distribution calculation should be included as a decision in your agreement.

Common disclosure mistakes to avoid

Not disclosing small assets or accounts

Many couples avoid listing small or seemingly insignificant items because they do not want to appear petty. For example, they may leave out a credit card with a $5 balance or a small savings account. However, even minor assets and debts should be included in a Separation Agreement. Full disclosure makes it clear that nothing was hidden or overlooked and confirms that the item was addressed at the time of separation. If an account later grows to a much larger balance, the agreement will already show that it was dealt with when the balance was minimal, which can help prevent disputes down the road.

Leaving items “off the table”

Another common disclosure mistake is leaving something off the table entirely, either because both parties agreed not to include it or because one person does not want to share the information. Leaving an asset or debt out of the agreement is very different from properly accounting for it and then excluding it from division. When something is omitted altogether, it creates ambiguity and can appear non transparent. In some cases, it may be treated as non disclosure, which can be enough to undermine or even set aside a financial agreement in the future. The proper approach is to fully disclose the asset or debt and then clearly state in the agreement that it will not be shared.

How to handle these issues properly

If you decide to keep a small account, perhaps one with only a few dollars in it, or to exclude an asset or debt from being shared, that choice is still a decision and it should be documented in the agreement. A Separation Agreement functions as both a record of income and a complete listing of assets and debts as they existed at the time it was created.

The best practice is to disclose all assets and debts, regardless of size, include them in the agreement, and clearly specify any decision to exclude them from division. This creates a complete and accurate picture of your financial situation at separation and helps protect both parties from future disputes or challenges to the agreement

Here is a diagram that outlines all the financial information and documentation you need to gather for a complete financial disclosure for a strong Separation Agreement:

No. 2: Proper documentation and organization

Gather the required financial documents

Once you have identified all assets and debts, the next step is to gather documents that support the numbers included in your agreement. Divii provides a financial document checklist that outlines exactly what needs to be collected, or you can refer to the list above. You can also read more in the Divii resource preparing to negotiate the financial parts of your agreement.

Compiling these documents in one place saves significant time and money. When both people are working from the same set of documents, there is less confusion, fewer follow up requests, and a lower risk of information being missed or misunderstood.

Best practices for document organization

To streamline the process and reduce costs, it helps to set up a shared digital folder that both people can access. Using a secure platform like Sync, a Canadian encrypted storage service that complies with Canadian privacy laws, allows all financial documents to be stored in one central location.

Having a shared folder means both people, and their lawyers, are reviewing the same information. This reduces back and forth between lawyers, avoids duplicate requests for documents, and often results in more consistent legal advice because both lawyers are working from the same body of information.

When organizing documents, create separate folders for different categories such as bank statements, investment accounts, property documents, debt information, and income verification. Clear and descriptive file names also make it easier for everyone involved to quickly locate and review the information, helping keep the process efficient and cost effective.

No. 3 : Independent Legal Advice and your Separation Agreement

Why legal review demonstrates fairness in your Separation Agreement

Getting independent legal advice is one of the most efficient and sensible ways to approach the process and ensure you have created a strong Separation Agreement. It allows you to have your decisions reviewed, receive clarification where needed, and polish the final document. Just as importantly, a lawyer will review the agreement with you to confirm that you understand its terms and how they align with the law.

A lawyer’s review helps ensure that all required issues have been properly addressed, including property division, child support, and spousal support. This review also confirms that the agreement reflects informed decision making, rather than assumptions or misunderstandings about legal rights and obligations.

Having a lawyer review your Separation Agreement demonstrates that you understood both the document itself and the legal context in which your decisions were made. In practical terms, it shows that you took the time to obtain expert guidance and entered into the agreement with full knowledge of its implications, which strengthens the agreement and reduces the risk of future challenges.

The strongest Separation Agreements involve independent legal advice

A Separation Agreement can be more vulnerable if one or both people choose not to obtain independent legal advice. While it is ultimately up to each person whether to consult a lawyer, it is strongly recommended that both parties receive legal advice before signing a Separation Agreement. This does not mean you need to “lawyer up” or turn the process into a dispute.

Even a limited consultation to review the agreement can help ensure that nothing important has been overlooked and that both people fully understand the terms they are agreeing to. Taking this step makes the agreement more durable, reliable, and less likely to be challenged in the future.

The strategic approach to legal consultation

If you have chosen a DIY approach for your Separation Agreement to avoid expensive legal fees, consulting with a lawyer is still an important part of ensuring you have entered into your agreement fairly. Instead of avoiding lawyers all together, consider a hybrid approach that maximizes value while minimizing costs.

The 90/10 rule for legal efficiency

The most effective strategy involves dividing the work strategically. Handle 90% of the work yourself, including data entry and information gathering, learning basic legal principles, running standard calculations, making initial decisions, and drafting the preliminary Separation Agreement.

Then invest in professional legal work for the remaining 10%, which includes reviewing your completed agreement, providing personalized legal advice, identifying potential issues specific to your situation, and offering guidance on complex decisions.

This approach can save you approximately 20 hours of billable legal time for each party, so up to 40 hours overall, while still ensuring a lawyer gives you legal guidance where it matters most.

Certification options: legal advice vs. witness signing

Option 1: Certificate of Independent Legal Advice

If you choose to consult with a lawyer, a Certificate of Independent Legal Advice can be included with your Separation Agreement. This certificate is attached to the agreement and signed by your lawyer. It confirms that the lawyer met with you, explained your legal rights and obligations, reviewed the agreement with you, and that you appeared to understand your legal position in light of the terms of the agreement.

Option 2: Witness signing with waiver

If you decide not to consult a lawyer, you can still create a valid Separation Agreement by signing it in front of a qualified witness who is at least 19 years old and does not benefit from the agreement. In this situation, the agreement should also include a waiver of Independent Legal Advice. The waiver records that you understood your right to obtain legal advice, were encouraged to consult a lawyer, chose to proceed without legal advice, and are comfortable with the terms of the agreement.

In this scenario, the agreement can still be reliable because it documents that you entered into it knowingly and voluntarily. Even without legal advice, the agreement shows that you understood your options, had access to the relevant information, and chose to sign with that understanding in place.

Aspects of Personal Fairness

No. 4. Understanding each other’s needs and goals

This is often the part of the agreement process that people miss. Yes, you can run calculations, and write an agreement in accordance with the law and even receive legal advice and complete and sign your agreement. But is it the agreement you and your spouse both want? Does it meet your goals and each of your needs?

While everything can look right on paper, it may not be right for real life. While certain components of the agreement like Child Support are almost always straightforward, there are certain parts of a Separation Agreement, like parenting arrangements, spousal support, and distribution of property that can have variations of what is considered fair.

It’s important to reflect on what both of you want and care about so that your decisions can be guided by your needs and goals, not just what looks right on paper.

Take time to ask yourself:

What do I truly care about?

What do I value most in life and in relationships?

What are my biggest fears or concerns?

What are my hopes for myself, my children, and our future?

These questions will help you understand your priorities and express yourself clearly with your spouse during the agreement process or during mediation or negotiation. It also helps to connect your answers with values that matter to you. Understanding what matters to you can help you make thoughtful choices.

If you’re using Divii, you are given a Co-Parenting Vision Questionnaire as well as a Financial Visioning Questionnaire and exercise that will help you clarify these considerations during your separation, ensuring you’re making informed decisions that align with each of your goals and values.

Sharing your goals and values

The key to using your goals and values is sharing them with your spouse and lawyer. Sharing them with your spouse helps them understand your goals and needs and what’s important to you. Remember that an is not a one way street or meant to be written in your favour alone. You simply cannot negotiate without understanding your partner’s needs and values.

Sharing with your lawyer helps your lawyer understand your goals and values so that they can give you the best possible legal advice tailored to you and your situation.

Any lawyer can create a fair agreement, but the question remains is: Does that fair agreement reflect your values and goals? Does it serve you and your family? Is it realistic? Will you or your spouse regret having to follow it? You don’t want to do all the work of reaching a fair agreement only to realize afterwards, it doesn’t meet any of your needs or align with your values.

The key to creating a not only a fair, but a strong agreement, is understanding the law and making informed decisions that align with both you and your spouse’s needs, goals, and values.

Creating Your strong Separation Agreement in British Columbia: Final considerations

Making your Separation Agreement legally binding

While a signed and witnessed agreement is legally binding, not all Separation Agreements carry the same strength over time. Agreements are more durable when they are created through a process that reflects informed decision making and transparency.

In addition to understanding each other’s needs and goals, and having a clear sense of what the law considers fair, there are several key components of the agreement process that help ensure a Separation Agreement is strong, reliable, and more likely to hold up in the long term.

The importance of feeling confident with your Separation Agreement

A truly fair separation agreement is one where both parties can confidently say they had access to all relevant financial information and understood their legal rights and options. Most importantly, they should feel they made informed decisions without pressure, feel confident about the agreement's terms, and feel the Separation Agreement aligns with their core goals and values.

In summary

By following these best practices and understanding the importance of fairness in legal terms, and the components of a strong, reliable Separation Agreement, you can develop an agreement that provides a plan you can rely on post-divorce. Remember, investing time in getting it right initially can save significant complications and costs down the road, making the effort to understand what makes up a strong Separation Agreement worthwhile for your long-term security and peace of mind.

If you’re looking to create your own Separation Agreement, Divii can help. Start drafting your Separation Agreement with Divii here.

Disclaimer: All content on Divii.ca is meant to provide general information about separation and divorce and is not and should not be considered legal advice. It's always highly recommended to seek independent legal advice from a lawyer during your separation.