Divorcing Dangerously: The Risks of Drafting Your Own Separation Agreement Jamie Nay

When a relationship ends, there’s a lot to figure out. Parenting time, support, division of property, pensions, debts – these are just some of the issues common in a family law dispute. And, if you and your ex are amicable, it can be tempting to sit down, hammer out an agreement, and type something up yourselves to “save money on lawyers”.

But, while these DIY separation agreements are, unfortunately, common, they’re also one of the most frequent sources of expensive legal disputes down the road. A separation agreement is not just a piece of paper. It’s a legally binding contract with serious long-term consequences. Here are four significant risks of drafting your own separation agreement.

Risk #1: Missing (or Misstating) Key Legal Rights

British Columbia’s Family Law Act sets out detailed rules about how property is divided, how to deal with support, and how to navigate the complex issues surrounding parenting arrangements, among many other things.

Many self-drafted agreements overlook or misstate these legal rights, such as:

  • Failing to properly account for excluded vs. family property (for example, pre-relationship assets, inheritances, post-separation growth)

  • Waiving spousal support without understanding future implications and risks

  • Drafting vague parenting schedules that fall apart as soon as life circumstances change, such as a new job or a new relationship

Importantly, courts can set aside all of part of an agreement if it’s found to be significantly unfair. “We didn’t know the law” is not a defence – and even if you do know what you’re giving up, it could be set aside on the basis of a party not receiving independent legal advice.

Risk #2: Lack of Financial Disclosure

The backbone of a solid separation agreement is full and honest financial disclosure. Without it, enforceability is questionable and an agreement can unravel quickly. If one party doesn’t fully disclose their assets or income, the other can later apply to have the agreement set aside – even years later.

DIY agreements often skip financial disclosure, usually because “we don’t have anything”, “we trust each other”, or “I don’t want anything from them”. That may feel amicable in the moment, but if a hidden asset comes to light later, the agreement can be reopened – sometimes with retroactive support claims attached.

Risk #3: Unenforceable or Ambiguous Clauses

A separation agreement is only as strong as the words on the page. Ambiguous or poorly drafted clauses lead to costly litigation when the parties inevitably disagree about what they meant.

Some common pitfalls include:

  • Using vague phrases like “reasonable parenting time” without defining what “reasonable” actually is.

  • Leaving property division clauses incomplete (“we’ll deal with the house later”).

  • Failing to specify start and end dates for support obligations.

An agreement should provide clarity and certainty. If a term can be interpreted in more than one way, a court may have to resolve the dispute – often at great expense.

Risk #4: Lack of Independent Legal Advice

Even if an agreement seems “fair,” it can still be set aside if one party didn’t receive proper independent legal advice. This is especially true if the agreement deviates from the “norm” for property division and/or support rights.

Independent legal advice is what gives a separation agreement its strength. A lawyer ensures the client understands their rights, the consequences of the terms, and that they’re entering the agreement voluntarily. Without it, the agreement may not hold up in court.

Why Hiring a Lawyer Often Saves You Money

It might seem counterintuitive, but involving a lawyer early on often reduces legal costs in the long run. A well-drafted agreement:

  • Reduces the risk of future disputes.

  • Protects against claims to set the agreement aside.

  • Provides clear, enforceable terms both parties can rely on.

Bottom Line

If you’re divorcing or separation, a separation agreement is one of the most important legal documents you’ll ever sign. While it’s technically possible to draft your own, doing so without legal advice is a gamble – and the stakes are high.

If you’re separating, it’s wise to have a lawyer draft or at least review your agreement before you sign. It’s far cheaper to get it right the first time than to fix it later.

For more information or to book a consultation, please book online or contact us today.