Divorce in Alberta can take anywhere from 3 to 6 months, on average. And if cruelty or adultery aren’t grounds for divorce, the spouses will have to be separated for one year before they can divorce. Other issues, such as parenting, support or property, may be involved, which may prolong the process even more. That’s where a separation agreement comes in.
“Separating couples relying on verbal agreements to manage this interim period find that they only cause more friction,” says Harshdeep Jakhar, Associate Lawyer at Juriscorp Law. “Since they are informal and undocumented, verbal agreements are impossible to enforce when spouses don’t follow what was agreed upon.”
In this article, we’ll walk you through what a separation agreement is, whether it’s legally required before divorce in Alberta, and what makes it valid and enforceable. Most importantly, you’ll learn why involving a lawyer early can save you time, stress, and money down the road.
What is a Separation Agreement?
A separation agreement is a formal contract between you and your spouse/partner that sets out how you will deal with issues arising from your separation.
A separation agreement is a legally binding contract. It typically covers key matters such as division of property, spousal support, child support, and parenting arrangements for any children.
Simply, it formalizes the terms of your separation so all parties have a clear, enforceable understanding of their rights and obligations.
It’s important to note that in Canada there is no special legal status called “legal separation” – separating simply means living apart, and there’s no court process or certificate for “legal separation”.
Being separated for one year is one of the grounds for divorce, but you do not need a judge or any official declaration to be considered separated.
Technically, You Don’t Need One…
Therefore, a separation agreement is optional in a technical sense.
You are not legally obligated to sign a separation agreement before divorcing. A divorce can be granted once you meet the basic requirements (and all matters of corollary relief, if applicable, have been addressed) and even if no formal agreement is in place.
In a very straightforward or amicable breakup, couples sometimes handle everything informally. This can happen if:
- The divorce is completely uncontested
- There are no disputes to settle
- No property to divide
- No support to pay (spousal or child support)
- No parenting arrangement applicable
- There is no other legal, financial, or interpersonal formality to sort out
However, such clean-cut situations are the exception, not the norm. Given the average length of marriage in Alberta is 14.6 years, it’s almost certain that spouses will have financial, property, and familial ties.
…But Most Likely You Will Need a Separation Agreement
For the vast majority of people ending a marriage or common-law relationship in Alberta, a separation agreement is highly recommended.
Unless you truly have no interdependent issues with your spouse, you will likely need a separation agreement to clearly settle your affairs. Consider a few common situations that call for a separation agreement:
If you have children: You’ll need to decide how the children will be cared for, where they will live, and how decisions will be made. A separation agreement is the place to set out your parenting arrangements (decision-making responsibility and parenting time) in detail.
If child support is involved: Child support is a legal obligation. The amount of support is typically dictated by law based on income and parenting time. An agreement will formalize who pays child support, how much, and how it will be adjusted over time.
If you have spousal support obligations or claims: When there is a significant income disparity or other eligibility for spousal support (alimony), a separation agreement can state whether spousal support will be paid and the terms (amount, duration, etc.). It may also be beneficial to include a waiver if both parties are waiving support to avoid potential claims in the future.
If you need a specific parenting schedule: Beyond basic custody labels, many couples want a detailed schedule for holidays, vacations, and daily routines with the kids. A separation agreement lets you customize your parenting plan to fit your family’s needs.
If you have property or debts to divide: Any assets accumulated during the relationship (house, cars, bank accounts, investments, pensions, etc.) and any joint debts need to be divided. Alberta’s default law would split matrimonial property equally, but you and your spouse might agree on a different split.
Benefits of a Separation Agreement Over Getting an Interim Court Order
Handling everything in one comprehensive separation agreement is usually preferable to dealing with issues piecemeal in court.
One alternative some people consider is seeking interim court orders (temporary orders from a judge). However, it’s not uncommon for orders to take weeks or even months. They are most costly, too, as you have to bear court fees and lawyers’ fees.
By contrast, a separation agreement is a much more comprehensive and customized solution. It can address all aspects of your separation in one fell swoop.
You do not need to start a court case to make a separation agreement. In Alberta, you can negotiate and sign a separation agreement entirely out of court. There’s no court file number or formal judicial process required for the agreement itself. Moreover, you are in control of the process, instead of being bound to the court’s timelines and procedures.
Even if there is some animosity between you and your spouse, attempting to negotiate through your lawyers is often better than rushing straight to court for interim orders. A negotiated agreement allows for creative give-and-take.
The best part? Once you and your spouse have resolved all issues in a separation agreement, obtaining an actual divorce order becomes a relatively simple paperwork exercise. Most, if not all, contentious issues will have been decided, making the divorce itself almost a formality.
Source: https://madeinca.ca/divorce-statistics-canada/
Here’s What’s Required for a Legally Valid Separation Agreement in Alberta
A separation agreement is only enforceable if it meets Alberta’s legal standards. To protect yourself and ensure your agreement holds up in court, make sure it includes:
- Written and signed
- Each party must get Independent Legal Advice (ILA) from their own lawyers
- Full financial disclosure
- Proper legal format
Each spouse must also sign a certificate confirming they understand the agreement, their legal rights, and that they’re signing freely. Courts in Alberta will generally respect what you and your spouse have agreed to, so long as it’s free, fair, and in compliance with prevailing laws.
Speak to an Experienced Divorce Lawyer
Entering into a separation agreement is a major step with long-term consequences for your finances, your children, and your future. It’s not something you should navigate alone.
Book a free, no-obligation consultation with an experienced family lawyer before you sign anything. We will explain what you’re entitled to, what you might owe, and how the law applies to your specific situation.