I’ve talked about Separation Agreements before, particularly concerning the sale of marital homes. You can read my previous post here.

But let’s look at the broader question: Do you even NEED a Separation Agreement? Anyone who knows me or has talked to me about divorce knows that I am a strong supporter of having one.

The reality is, however, the circumstances and emotions involved in a couple’s separation or divorce are as varied as snowflakes in a snowstorm. So, decisions made around the need for a Separation Agreement can be positively or negatively influenced by these circumstances.

Consider these real-life scenarios

Scenario One:  A good friend of mine had been divorced for over two decades and, through mutual agreement with her Ex, had been granted sole ownership of the matrimonial home as part of the settlement between them. No Separation Agreement was drafted - they simply agreed to this arrangement in lieu of support.

Twenty years later she is purchasing her first investment property. She has been approved for financing and all goes smoothly until closing day comes. The lender won’t release the funds because they require a copy of her Separation Agreement. She explains that she never had one, it was a handshake deal, their kids are all independent adults, and she and her Ex have both moved on with their lives. The lender doesn’t care. They need the Separation Agreement in order to release the funds.

Now, she faces the daunting challenge of securing emergency funds to close the deal while also tracking down her Ex to get a written agreement in place so she can obtain her mortgage.

Scenario Two: A couple with two children are legally separated. The mother has custody and a Court Order specifying the child support the father agreed to pay. However, after just two months, he stops making these payments. Without a signed Separation Agreement, what options does she have?

In this scenario, her recourse is limited to registering the original Court Order and reporting him to the Family Responsibility Office (FRO) to enforce it. Without a formal Separation Agreement, she would likely need to engage lawyers and potentially go to court, which could be a long and expensive process.

If both parties agree, they can sign a Separation Agreement, making it legally binding. Once filed with the court, it has the same effect as a Court Order and can be registered with the FRO for enforcement. However, for the FRO to collect child support, the Agreement must first be filed with the court and then registered with the FRO.

Currently, she’s living in the matrimonial home, but without a Separation Agreement, she’s facing some limitations. She can’t sell the house, switch lenders, or apply for a Line of Credit because lenders require a copy of the Separation Agreement. Her only option is to continue to renew the existing mortgage.

A Separation Agreement could surely change her life, wouldn’t you agree?

Scenario Three:   When I was first divorced, I received child support payments from my Ex based on the terms of our Separation Agreement. After a couple of years, the kids decided to move in with him and we mutually agreed to not exchange money anymore as we anticipated the kids might be going back and forth. 

As he had been claiming the child support payments on his taxes, a government official came knocking at tax time noting that he had stopped making payments and they were going to start garnishing his wages. I had to write a letter to let them know we’d made an agreement to stop support payments. To be honest, I had to write that letter two years in a row before they would stop bothering him. In hindsight, we should have amended our Agreement to avoid the extra stress.

So, do you really need one?

Without a formal agreement, there’s no legal documentation to back up any informal arrangements. This can lead to unexpected disputes over finances, pensions, parenting access, or support payments. Informal agreements are much harder to enforce in court, leaving you vulnerable to uncooperative or non-compliant behaviour.

I always say, "It’s good, until it isn’t." While things may seem smooth now, that may not always be the case. That’s why, even though a Separation Agreement isn’t legally required, it’s generally a wise choice. As the scenarios above show, it provides clarity, protects your rights, and can save you time, money, and stress in the long run.

Remember, every situation is unique. It's always best to consult with a family law professional to determine if a Separation Agreement is right for your specific circumstances.