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We're not married. What if we agree on what happens to our property and debts after we separate?

If you and your partner agree to divide your property and debts, you can put what you've agreed to in a separation agreement. This is a written contract that you and your partner make.

Your separation agreement can deal with your assets and debts alone, or can include other things like spousal support, custody and access, and child support.

You don't have to wait until you and your partner agree on everything before making a separation agreement. For example, you might agree on how to divide your property before you have a plan for your children. So you can make a separation agreement about your property first.

You can make a separation agreement if you’re married or in a common-law relationship.

There are some good reasons to make a written separation agreement:

  • It can be faster, cheaper, and less stressful than going to court.
  • It lets you and your partner decide what works best for you and your family.
  • It's easier to prove what you and your partner agreed on if you have a written rather than a verbal agreement.

You can talk to a lawyer who can give you advice about the rules your separation agreement needs to follow to so that the court can enforce it.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

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Next Steps: 

1. Agree on the terms of how to deal with your property and debts

Because common-law partners have different rights to property than married partners, you and your partner need to agree on:

  • how to divide jointly owned assets and debts
  • if you should share each other's assets and debts; and
  • how to share in each other's assets and debts

You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

As part of this process, you and your partner need to give complete and honest information about your financial situation. This is called financial disclosure.

The law lets you and your partner make a separation agreement about what should happen to your property and debts. You can make a separation agreement any time after you separate.

Since common-law partners don't automatically have to pay an equalization payment at the end of their relationship, they need to show why they have a right to a share of their partner’s property. This can be very hard.

Some people divide property by applying the rules of a cohabitation agreement that they signed before they separated. These types of agreements can say whether you and your partner want to divide your property and debts.

Some of the things you may want to think about including in your separation agreement are:

  • what property and debts were considered in reaching an agreement
  • how to divide jointly owned property
  • how to divide jointly owned debts
  • who stays in the home

If you agree that one of you pays the other as a way to divide property, you also need to agree on how this amount will be paid. For example, if you agree that you owe your partner $5,000, you might agree to pay this amount by cheque to your partner. Or, you might agree to sell your jointly owned home and divide the proceeds of sale so that your partner gets an extra $5,000 from your half. You might also be able to pay your partner from your pension.

If you or your partner decides to move out of your home, you have to decide:

  • what day to move
  • what you can take with you
  • where to go
  • whether your children will move with you

Talking to your partner may not be the best option where there is a history of partner abuse.

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2. Make a separation agreement the court can enforce

Your separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

For example, the rules say before you sign your agreement, you must understand it, the process is fair, and that you and your partner give complete and honest information about your finances.

As long as these rules are followed, the law allows common-law partners to agree on how to deal with their property. This means you can agree:

  • if one partner owes the other partner for an "unjust enrichment" or trust claim
  • if one partner is going to pay the other partner an equalization payment to share in the value of their property as if they were married
  • if property is going to be divided another way
  • if property is not going to be divided at all

Financial disclosure, which means sharing financial information with each other honestly and completely, is very important to an agreement that deals with property.

If one partner failed to tell the other partner about significant assets or debts they had when an agreement was made, the court may set aside all or part of that agreement. This means the court allows you not to follow all or part of the agreement.

You can give financial information in many ways. For example, you could use a computer spreadsheet or a handwritten document that lists all your financial information.

Or, you can fill out one of the financial statement court forms. Many people use these forms even if they don't go to court because they show you what the court looks at when deciding property issues.

If you or your partner wants the court to divide your property, you must use Form 13.1: Financial Statement (Property and Support Claims). In this form you must list all of your assets and all of your debts.

You and your partner should also give each other documents that support the assets and debts you have listed. For example, copies of bank statements that show how much money you say is in your bank account.

Don't sign a separation agreement until you're sure you have all the information you need. Make sure that you understand what is written and that you agree to it.

The courts encourage people to decide their issues on their own. So if you have an agreement, the courts won’t set aside your agreement easily.

So for example, the court won't set aside an agreement just because one of you has changed your mind and now thinks your agreement isn't fair.

But if you and your partner didn't follow the rules, for example, if your partner didn't share important financial information, when making your agreement, the court may set aside your agreement.

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3. Get your own independent legal advice

You don't need a lawyer to make a separation agreement. But it's a very good idea to get your own legal advice before signing one.

You can talk to a lawyer who can help you understand:

  • The claims you can make after you separate.
  • Your rights and responsibilities toward your children and your partner.
  • The rules your agreement has to follow to make it binding and enforceable under the law.
  • How your rights change once you sign the agreement.

You and your partner should not go to the same lawyer. It is important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice (ILA). The advice is independent because each lawyer is only working for one of you.

Besides helping you understand what you're agreeing to, there are other important reasons to get ILA. If you and your partner each get ILA, your agreement is less likely to be challenged later. And a court is more likely to order you and your partner to do what you agreed.

If you decide not to get legal advice, you may not be able to argue later that you didn't understand your legal rights when you signed the agreement.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

4. Sign your separation agreement

There are rules about how you make a separation agreement. These are called formal requirements. These rules say your agreement must be:

  • in writing
  • have a date
  • signed by both people who are making the agreement
  • witnessed, which means you and your partner have to sign the agreement in front of another person
  • signed by the witness

If you don't follow these rules, and you don’t agree later about your separation agreement, the court doesn't have to order you or your partner to follow it.

There are no specific rules about what information you need to have in your separation agreement. But you should be as clear and detailed as you can so that the agreement shows exactly what you and your partner agreed to.

This is important in case you have a problem later because your partner is not following your separation agreement.

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Reviewed: 
September, 2015

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