By Neta, founder of SortMyDivorce · Updated
A separation agreement is the document that governs the rest of your financial life with this person. It is worth an evening. This guide is for Canada. In the United States the equivalent document is usually called a marital settlement agreement — "separation agreement" there most often refers to employment severance. See the companion US guide.
| What it is | A contract settling the legal issues arising from the end of a married or unmarried relationship. |
|---|---|
| Must be | In writing and signed by both parties. |
| Witnessing | Required. In BC, sections 93(1) and 163(1) of the Family Law Act require witnesses for property, debt and spousal support agreements. |
| Independent legal advice | The single most important safeguard. In Alberta, for property division, each party needs a Certificate of Independent Legal Advice from separate lawyers. |
| What happens without it | CPLEA: "If you do not have certificates of independent legal advice, the courts may not be able to do anything if the other person is not following your agreement." |
| Disclosure | Clicklaw: parties "must make full and complete disclosure of their financial circumstances" going into agreements about support, property and debt. |
| What cannot be contracted out of | Statutory obligations. Courts will "rarely if ever uphold an agreement that attempts to avoid a statutory obligation." |
| Child support | Departing from the Federal Child Support Guidelines risks the agreement not being enforced. |
| Copies | Sign two originals so each of you holds one. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
If you read one section, read this one.
Independent legal advice means each party gets advice from their own separate lawyer, before signing. Not the same lawyer. Not one lawyer "acting for both of you". Not a lawyer who drafted the agreement for your spouse and then explained it to you.
Clicklaw sets out why it is critical, in three parts: understanding how the agreement affects rights you would otherwise have in court; clearly understanding the obligations and rights the agreement creates; and preventing either party from later claiming they did not understand what they were signing.
The lawyer giving that advice typically signs a Certificate of Independent Legal Advice — confirming that the party received advice, understood the terms, and was not coerced.
The consequence of skipping it is not abstract. CPLEA puts it plainly for Alberta property agreements: "If you do not have certificates of independent legal advice, the courts may not be able to do anything if the other person is not following your agreement."
Read that again, because the logic runs opposite to how people usually think about it. Independent legal advice does not protect you from a bad agreement. It protects your good agreement from being unenforceable when the other side stops complying.
That is also why, if your spouse is unrepresented, it is in your interest for them to get advice before signing. An agreement that holds is worth more than a better one that does not.
An agreement negotiated on an incomplete financial picture is built on sand.
Clicklaw is direct: parties "must make full and complete disclosure of their financial circumstances going into agreements about child support, spousal support, property and debt."
Do not sign while disclosure is outstanding. If you do not know what exists — accounts, pensions, corporate interests, debts — you are not agreeing to a division. You are agreeing to a guess.
Material non-disclosure is one of the more common routes to an agreement being challenged later. That cuts both ways: it is a risk if you are the one who withheld, and a remedy if you are the one who was misled. Either way, the time to deal with it is before signature.
Some things are outside what two people can agree between themselves.
Clicklaw notes that courts will "rarely if ever uphold an agreement that attempts to avoid a statutory obligation" — the standing example being an agreement that eliminates child support.
CPLEA makes the same point in operational terms for Alberta: "If you and the other parent do not follow the Federal Child Support Guidelines, the court may not enforce your separation agreement."
The practical version: child support is not really yours to trade away. It belongs to the child, the Guidelines set the framework, and an agreement that departs from them without good reason is at risk — which means the whole agreement can be at risk.
In writing and signed. CPLEA: "Separation agreements must be in writing and signed by both spouses/partners for the courts to enforce it."
Witnessed. Required, and the requirements are statutory in some provinces — in British Columbia, sections 93(1) and 163(1) of the Family Law Act require witnesses for agreements about property, debt and spousal support. In practice the lawyer who gave you independent legal advice often witnesses your signature.
Two originals. CPLEA: "Sign two original copies so you each have one." Unglamorous and genuinely important — years later, an original in your own hands is worth a great deal.
Verbal agreements are not automatically nothing. Clicklaw cites Voitchovsky v Gibson, 2022 BCCA 428, where a court may find a binding agreement where both parties clearly understood the essential terms and conducted themselves consistently with it over years. That is not a reason to rely on a verbal agreement — it is a reason to be careful what you appear to have agreed to.
Set aside an evening. Do not do this in a lawyer's waiting room.
Check it matches what you actually agreed. Compare it, clause by clause, against the correspondence — the offer you accepted and the letter that recorded it. Drafts drift, and discrepancies are far cheaper to fix before signature.
Read the parts nobody discussed. Releases, indemnities, what happens if someone does not comply, dispute resolution clauses, what triggers a review. These are usually never mentioned in negotiation and are usually the parts that matter years later.
Understand exactly what you are releasing. Most agreements involve giving up the right to bring further claims. Know the scope and the duration.
Look for mechanisms, not just outcomes. "The house to be sold" is not a mechanism. "Listed within 60 days, priced by two valuations, net proceeds split 55/45, either party may list if the other does not cooperate within 14 days" is. Vagueness is where enforcement fails.
Check every number and date. Transposed figures happen.
Ask what changes it and what does not. Some terms can be varied later; some cannot. Know which is which before you sign, not after.
Do not sign under time pressure. An expiry attached to a settlement is a negotiating device far more often than a real constraint. A few days for legal advice is a reasonable thing to insist on, and reluctance to allow it is informative.
Verification notes. 1. The sources above are Alberta and British Columbia public legal education bodies. Ontario, Quebec and the other provinces are not separately covered. Requirements differ — Quebec's civil law system differs substantially — so confirm your own province's position with a local lawyer. 2. The BC Family Law Act section numbers are as cited by Clicklaw; the statute text was not read directly. 3. The grounds on which an agreement may be set aside are deliberately not enumerated. They are fact-specific, heavily litigated, and a list on a web page would do more harm than good.
Yes, and agreeing on everything is the situation where it is easiest to skip and most damaging to have skipped. Without independent legal advice, the agreement you both wanted may not be enforceable when one of you stops following it.
No. Independent legal advice means separate lawyers giving advice to each party. A lawyer cannot properly advise both sides of a negotiation between them.
Discuss it with yours. It is generally in your interest for them to have advice, because it makes the agreement more durable. There are established ways of handling it, including express acknowledgements in the agreement itself where advice was declined.
No. A separation agreement is a contract settling your issues. A divorce is a court order ending the marriage. You can have one without the other, and most people who divorce have both.
Some terms can, some cannot, and the answer depends on the term, the province and what the agreement itself says. Ask before signing rather than assuming.
Concluded agreements are generally binding, and regret is not a ground for undoing one. There are limited routes — material non-disclosure and absence of independent legal advice among them — but they are narrow, expensive and not a safety net. Get advice promptly if you think one applies.
Last reviewed August 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
Upload your lawyer letters and SortMyDivorce tracks every offer and issue automatically, each with the exact quote it came from.
This guide is general information, not legal advice. Laws change and differ by jurisdiction — confirm specifics with a local family lawyer or your court's official website. If you use SortMyDivorce, your letters stay confidential — never shared, never sold.