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Do you have to be a lawyer to draft a Separation Agreement?

Do you need to be a lawyer to draft a separation agreement in canada

The short answer is no. The long answer is important to unpack though. As a Family Mediator (also referred to as Family Law Mediator or Divorce Mediator) I get asked this question a lot. There is a strong narrative suggesting or even stating that only a lawyer can draft a legally binding separation agreement and this is not true. Anyone can draft their own separation agreement and as long as it includes certain information, is signed by both spouses and witnessed it is legally binding. I am not suggesting that this is the better way, rather there are options and transparency of information is important.

I have spent a considerable amount of time working on an Access to Justice (A2J) initiative in BC with professionals from a variety of backgrounds (e.g., judges, lawyers, mediators, counsellors and government). I know that decreasing costs and supporting people to resolve their disputes are two key elements of A2J. I am not suggesting that anyone work without professional guidance to create a DIY separation agreement. Rather, if you have worked with a mediator that is qualified to mediate all aspects of a separation or divorce and the spouses have made decisions based on financial disclosure, legal information and child development information then how you go about getting a legally binding agreement is an A2J issue for a lot of families.

If you kick the tires on the narrative I mentioned earlier about only a lawyer being able to draft a legally binding agreement you will have three lawyers involved (one to draft and one providing independent legal advice to each spouse). For many families hiring three lawyers would not be accessible and for others, this does not sit well with them. Some people are of the opinion that they did not consult a lawyer before getting married or having children so why would they hire one to three during their divorce.

I always encourage my clients to get independent legal counsel before signing any agreement and yet self-determination is a hallmark of mediation – after all who knows your circumstance better than you. Most families like to make decisions after learning about their options and any possible downstream impact for each option.

I have conducted hundreds of family mediations and clients leave my process having reviewed and agreed to every line of their Memorandum of Understanding (which does not take long as they were involved in the decision making). They have full clarity and a shared understanding and then they move forward in one of four different ways:

1. The parties use the Memorandum of Understanding (MOU)

This is a good faith agreement prepared by the mediator in mediation that captures all the agreements made in the mediation process. These clients may already be divorced and they were mediating issues around parenting arrangements and felt that their MOU was all they needed. Some clients that were common law (and do not have to file for divorce) feel that their MOU is comprehensive, neutral and fair and they trust each other to honour the terms. For these families there are no lawyers or extra costs involved.

2. The parties draft their own Separation Agreement

In this case the spouses use an online template or reference sample agreements provided by government agencies as part of A2J initiatives. These families use my MOU as the template for their separation agreement and feel strongly that it is comprehensive, neutral and fair and do not want to consult a lawyer. And yes, they use this legally binding Separation Agreement to file for divorce, get approval for a new mortgage or to have their financial planner equalize RRSPs.

3. One party hires a lawyer to draft the Separation Agreement

Sometimes one spouse is adamant that they want to waive their right to independent legal advice and the other spouse wants the comfort of knowing they consulted with a lawyer and a certificate of independent legal advice. In this circumstance one spouse has either already consulted with a lawyer or has asked me to recommend one. I then email their counsel a copy of their MOU so that they can use this neutrally drafted agreement as the template for the Separation Agreement that one spouse’s lawyer will draft.

4. Both parties hire a lawyer, one of which drafts the Separation Agreement

In this circumstance it might be really important for the terms of the agreement to be enforceable in the years to come and both spouses want the assurance of legal counsel before making a big decision. Both parties are able to get a certificate of independent legal advice which means their agreement is unlikely to be contested in the future. Again, the neutrally drafted MOU will be used as the template for the separation agreement. I refer my clients to family mediation friendly lawyers who also provide unbundled services at competitive rates.

Ultimately, A2J for a lot of families means a timely process, saving money and the ability to choose what is right for them. As a member of the Family Roster of Mediate BC I have signed a Standards of Conduct acknowledging the importance of my duty to avoid a conflict of interest, the importance of mediator integrity, not to have dual roles in the process and to not have any misleading advertising. These standards of conduct highlight why it is important to inform clients of their options which in turn balances out a narrative that is not fully transparent and increases the likelihood of A2J.