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Separation-agreement-without-lawyer

How to Write a Separation Agreement without a Lawyer

The decision to separate as a couple is never easy. There are a whole host of things you will have to deal with, from how to take out time with children, if there are any, from the relationship, to how to unpick financial ties.

It can be difficult, and no matter how prepared you believe you are to deal with it all, it is easy to feel overwhelmed. At a time like this, you might think saving money by drafting a separation agreement without a lawyer from an online template is a good idea.

However, it could cause stress and upheaval later down the line. So here, we give you nine tips on how to write a separation agreement without a lawyer, and we also take a look at why it’s best to use a lawyer.

What is a Separation Agreement?

A separation occurs when your spouse or a common law partner decides to live “separate and apart.” It is important to remember that being separated doesn’t mean your marriage has ended if you’re married. You would need a divorce order to end your marriage officially. As per the Divorce Act living “separate and apart” essentially means either:

  • Each person is living at their own place or;
  • Both people live under the same roof but have moved out to separate rooms, have separate meals and finances.

A separation agreement is an agreement in writing between spouses or common-law partners to set out their rights and responsibilities after separating. A good Separation Agreement must include terms on Child Custody, Child Support, Spousal Support, Division of Property, debts or liabilites & Divorce, if applicable.

Is a Separation Agreement Required?


A separation agreement is not required, and there is no obligation to enter into a separation agreement in Canada. Similarly, you do not need a separation agreement before grant of a divorce order. Whether there is an agreement in place or not, a separation becomes legal at the point when parties begin to live “separate and apart.” However, it is crucial to note that if you have children, your divorce may not be granted without an adequate arrangement for child support, which ideally should be part of a separation agreement.

It is also important to remember that a separation agreement would cover issues such as child custody, spousal support, property division, debts or liabilities. Alternatively, you need to litigate such issues with extensive legal costs. Therefore, even if a separation agreement is not required by law, it is an essential tool to get an all-inclusive settlement for a fraction of the cost.

Why you need a lawyer

You may find generic templates about a separation agreement or get a copy of a template from a reliable source. Still, no relationship is truly generic. Therefore individual intricacies are not covered in such templates.

Your separation agreement is not something you should take lightly, especially without any legal knowledge or experience. There will be potential stumbling blocks you will come across when preparing your own separation agreement.

Most importantly, after you have prepared your own separation agreement, you should have a lawyer review it before you sign. The process of review by a lawyer is called independent legal advice. However, most lawyers will not be comfortable giving independent legal advice, especially if a non-lawyer drafted the agreement. Also, an agreement can be set aside by a court of law if no independent legal advice was given to the parties signing it.

Therefore you can do your own separation agreement in Ontario, but a lawyer’s involvement is crucial when dealing with a separation agreement. With this in mind, you would want to look for a lawyer to draft your separation agreement rather than going it alone.

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A Separation Agreement without a Lawyer

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Our legal services ranges from uncontested divorce to contested divorce in Ontario, including draft Separation Agreement prior to filing uncontested divorce applications.

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9 Tips on How to Write a Separation Agreement without a Lawyer

Tip 1: Covering the financials

In order to write a separation agreement that is legally binding it is important for both spouses to be completely honest about their circumstances – including their financial situation. If you are not absolutely sure that your spouse is being clear on their finances with you, it can cause a lot of upset emotional as well as legal. A Separation Agreement can be set aside by Courts of Law if the Judge finds that one of the spouses/ partners was not completely honest and failed to disclose material financial assets and information. This is Misrepresentation fact and can have a Separation Agreement trashed into pieces.

Taking advice and assistance from a Separation Agreement Lawyer, in this case, is the best thing to do as if a person who is being less than honest with their former spouse about their financial position is more likely to reveal all if they know you have a backup from a legal standpoint. Your lawyer should make sure that both parties have completed a Financial Disclosure Form and have dully signed and commissioned it as per the requirements of Law. If you are doing it yourself then you would need Form 13 for mere support and 13.1 for support and property to be filled out and commissioned.

Tip 2: Start and End date of the Relationship

Make sure you have a start and end date of the Relationship. In some cases, parties may be living together before getting married. In such situations, you would enter the date when you started to live together even if you were not married. You would also need to insert a separation date because the division of property is to be calculated based on the date of separation.

Tip 3: Equal Division of Property

Under Canadian Family Laws, there is a general presumption considered that there shall be an equal division of all assets and liabilities as of the date of separation. Although it is possible to divide property unequally under Family Laws and your lawyer should be able to help you prepare a separation agreement based on an unequal division of property legally.

Tip 4: If you both want to stay in the family home

Most people assume that one or the other spouse has to leave the family home before you can be considered legally separated. In fact, this is not the case. A lawyer can explain what constitutes ‘living apart’ while being under the same roof, meaning that you can be separated in the legal sense sooner than the time it takes for you or your spouse to make other living arrangements. The details of these complexities of living in the same home but apart can be explained and settled on for the separation agreement, but it can be complex to decide on the details, and a lawyer can provide advice as to how this should work.

Tip 5: There are children involved

No parent knows how they are going to feel once they have to see their children on a part-time basis should they choose to separate. This is a common theme across separations and divorces in Ontario and all over the world. Parents agree between themselves how to make child sharing arrangements, but then one or the other parent misses having the children as much further down the line and this can lead to numerous arguments and legal wrangles over custody. Agreeing what is fair and right can be complex when it comes to children and your lawyer will be able to advise you on the best way to work it out without having to keep going back and forth over custody arrangements.

Tip 6: It can get emotional

Generic templates that you might find on the internet may well have been put together with the intention of assisting those people who are looking to separate. However, every case is different and separating can be a very emotional time. Even the most level-headed of people can lose their calm when in the process of separation, whether it is over a custody arrangement, a financial proposal or who will move out of the family home and when. This is why having a third party who does not have any emotions invested in the relationship is the best choice to help with the drawing up of an agreement. Your lawyer will be able to advise you whether you or your spouse is being fair and will be able to draw on the experience of working with other couples to advise you as to whether what you are proposing to agree is out of the ordinary and could lead to problems further down the road.

Tip 7: Certificate of Independent Legal Advice

It is crucially important that both parties to the agreement get a Certificate of Independent legal Advice and have it attached with the Agreement as part of the annexures. Many online articles suggest that it is not necessary to have a lawyer review your separation agreement but they do not know the case law on this topic. At Shaikh Law, we are an experienced lawyer who deals in the Separation Agreement and Divorce on a regular basis. If no Certificate of Independent Legal Advice is attached then one of the spouses/ partners can easily claim he/she did not understand the terms of the agreement which is sufficient ground to set aside a valid agreement.  Both parties would need to get an independent and separate lawyer to review the agreements and advise them. The Lawyer will make sure that proper financial disclosure is made and would confirm with the parties that they were not forced to enter into the agreement.

Tip 8: What topics a Separation Agreement should contain

A Separation Agreement should ideally cover the following topics and narrate what the parties have decided about the following issues.

  1. Child Custody
  2. Child Support & Spousal Support
  3. Access
  4. Family Home & Division of Property  and
  5. Pension Plans
  6. Who will file for Divorce and cost of paying for Divorce as well as co-operation for Signing Divorce Papers

Tip 9: Seek Legal Advice

If you and your spouse have recently separated or are about to separate, then it is a good idea to make an appointment to see a lawyer. Seeking legal advice will help you to get a good understanding of the legal rights in regard to your circumstances, this will allow you to make sure that your interests are properly looked after. You should always make sure that you are receiving the most appropriate legal advice for your circumstances. There is too much to lose both financially and emotionally that it is simply not worth risking completing a separation agreement on your own.

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FAQ

Most frequent questions and answers

A good Separation Agreement must include terms on Child Custody, Child Support, Spousal Support, Division of Property, Pension, Dispute Resolution & Divorce, if applicable.

People create a separation agreement to avoid extensive litigation costs. If you can resolve major terms of separation by way of an agreement you can save thousands of dollars in legal costs, which could be better spent on the family rather than in courtrooms.

You can be considered separated while living on the same property. For example, if you move to a separate bedroom or part of the house, such as a basement, then such a move within the home is considered a formal separation. You can record your separation within the house by exchanging an email with your spouse or partner that the date you moved to another room is to be treated as a separation date.

No, You do not need a lawyer for a Separation Agreement in Ontario. A separation agreement is valid as long as it is signed and witnessed by the parties. However, it is highly recommended to have a lawyer because your spouse or partner could trick you into signing an illegal agreement that is not in your best interest. Therefore, a separation can easily be challenged as not legally binding. 

Click Here to Learn 9 Tips on How to Write a Separation Agreement without a Lawyer.

You do not need a separation agreement before divorce in Ontario. However, if you have children, then your divorce may not proceed without an adequate arrangement for child support, which ideally should be part of a separation agreement. Therefore, if you have children, then it is beneficial to have a separation agreement before you file for divorce in Ontario.

The cost of a Separation Agreement in Ontario varies depending on whether you are using a Lawyer or you are working based on a Separation Agreement Template Online. Sometimes Separation Agreement Templates are Free. Some basic Separation Agreement Template online would cost between $30 to $50 whereas a Lawyer’s Legal Fees for a Separation Agreement would be $999.00 to $3,000.00 + Taxes depending on the complexities of the Agreement.

A husband is expected to support his wife during separation if she is entitled to spousal support in accordance with spousal support guidelines. The basic criteria are if the wife is financially dependent on marriage, then the husband has to support his wife during separation. For example, the wife was not working, but looking after the children during the course of the marriage or her income was significantly less than the husband’s income.

In the eyes of the law, both spouses or partners get to stay in the house during separation, since the house is their matrimonial home. It does not matter if the matrimonial home is rented or owned. Therefore many separating parties decide to stay in the same house until the separation agreement is finalized.

A court of law can terminate a separation agreement if the Judge is satisfied that either;

  1. The Parties to the Separation Agreement did not make a full and frank financial disclosure. One of the parties did not provide a complete list and value of all assets and liabilities, including complete details of the expenses and support received from the Government, Or
  2. The terms of the Agreement are not in the best interest of the Child, Or;
  3. The terms of the Agreement are unfair in the eyes of the law, such as a situation where one spouse gives up on her lawful right for spousal support without any compensation whatsoever, causing her to face hardship

Yes, a Separation Agreement is legally Binding in Ontario. In fact, Judges, as well as the Legislature, encourage parties to settle their disputes by way of a Separation Agreement. Since it gives the parties sufficient opportunity properly negotiate the terms of the agreement.  The Family Law Act, R.S.O. 1990 specifically states that a separation agreement would prevail over the provision so the Law was passed by the Parliament.  It is stated under 2(10)of the Family Law Act, R.S.O. 1990 “A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.  R.S.O. 1990”.

In a number of court decisions, Judges have shown their inclination to upload the terms of the Separation Agreement. It would be safe to say that as a General Rule a Separation Agreement is Legally binding in Ontario. In some situations, a Judge can set aside terms of a Legally Bind Separation Agreement if the Judge is satisfied that either;

  1. The Parties to the Separation Agreement did not make a full and frank financial disclosure. One of the parties did not provide a complete list and value of all assets and liabilities, including complete details of the expenses and support received from the Government, Or
  2. The terms of the Agreement are not in the best interest of the Child, Or;
  3. The terms of the Agreement are plainly unfair in the eyes of Law, such as a situation where one spouse gives up on her lawful right for spousal support without any compensation whatsoever causing her to face hardship.

A simple answer to this question is that No, you do not need to notarize a Separation Agreement. 

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As per the Laws in Ontario, Canada, parties are not obligated to enter into a Separation Agreement. Therefore,  if the spouse won’t sign the separation agreement in Ontario, then you would have to litigate the matter before family courts. 

 

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A Separation Agreement must be witnessed by any person above the age of 18.

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Yes, we offer Flat Fee Separation Agreement to our clients. 

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