Divorce

From Clicklaw Wikibooks

Divorce is the legal termination of a marriage by an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." order represents the formal conclusion of a marriage, where children are involved or one spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.".

The criteria that must be met to obtain an annulmentA declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occurred. See "ab initio," "declaration" and "marriage, validity of." ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter Family Relationships within the section Marriage & Married Spouses.

Preconditions for applying for a divorce in BC

If you want to get a divorce in BC, you must first satisfy three conditions:

  1. You must be legally married. If your marriage was legally valid in the place you got married, it counts as a legal marriage in BC. To prove you were legally married you will need to provide a marriage certificate issued in the country where you were married. If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to either testify or swear an affidavit saying that they saw you get married.
  2. Generally, you or your spouse must live in BC and have lived here for at least a year. The one exception to this rule is if you were married in BC, and you lived somewhere in the last year that wouldn't let you get divorced. If you take advantage of this exception, you can only get a divorce in BC. Claims about children, propertySomething which can be owned. See "chattels" and "real property." division, and child and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. must be dealt with where you and your spouse live.
  3. You must prove that you have been separated from your spouse for a year, or that your spouse treated you cruelly, or that your spouse had sex with someone else.

The grounds for divorce

Under the federal Divorce Act there is really only one reason why you can apply for a divorce order, marriage breakdown. Under s. 8 of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.", there are three reasons why marriage breakdown may have occurred:

  1. the intentional separation of the spouses for at least one year;
  2. the adulteryA married person's voluntary sexual intercourse with a person other than his or her spouse; playing the field; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of." of a spouse; and,
  3. one spouse's treatment of the other with such mental or physical crueltyIn family law, the physical, verbal, emotional or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the adulterous act. See "condonation" and "divorce, grounds of" that it is impossible to continue the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.".

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. No-fault, in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.". The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

Separation

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The Divorce Act provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

Adultery

A spouse who is claiming that the other spouse is guilty of adultery must prove this claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." making the claim has not condoned the adultery or connived to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

Cruelty

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damagesAn award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort." as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not condoned the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

Conspiracy, connivanceIntentionally causing or permitting a wrongful act to happen to obtain a goal. In family law, a married spouse conspiring towards the adultery of the other spouse for the purpose of claiming adultery as a ground of divorce. A divorce will not be granted where connivance as to the ground of divorce relied on is found. See "adultery," "collusion," "condonation," and "divorce, grounds of." and condonationForgiving the wrongful or harmful act of another. In family law, condonation usually refers to forgiving an act of adultery or cruelty and the continuation of the parties' relationship as it had been before. See "adultery," "cruelty, mental or physical," and "divorce, grounds of."

If a court finds that there has been conspiracyThe agreement of two or more people to perform an unlawful act or to do a lawful act by unlawful means. A conspirator is a party to a conspiracy. See "lawful.", connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the Divorce Act and cheat the court to get a quick divorce.

If there has been condonation, the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

Conspiracy and connivance are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. Conspiracy means that the spouses have worked together to achieve the wrongful actActs or omissions that are contrary to legislation, the common law or that are immoral or unethical even if not contrary to a legal principle. See "lawful." providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. Connivance means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

Child support

The court is required, under s. 11(1)(b) of the Divorce Act, to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a reasonable arrangement usually means that child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. is being paid according to the Child Support Guidelines. If you have children, you will have to prove that the children are being provided for as the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. require before you can get a divorce. Remember that under the Guidelines, the table amountThe amount of child support payable under the Child Support Guidelines tables. See "Child Support Guidelines." of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to pay child support without fixing an amount payable.

The divorce order

In order to get a divorce order, the court must be satisfied that:

  • the marriage legally exists,
  • at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." began, or one of the parties lived somewhere in the last year that would not permit the divorce because the marriage was not recognized there,
  • the ground on which marriage breakdown in claimed has been proven, and,
  • if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal., the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

Corollary reliefIn law, an order sought by a party to a court proceeding or application, usually as described in his or her pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings."

An order for divorce can be made on its own or together with corollary reliefIn court proceeding for divorce, this term refers to all relief claimed apart from the divorce order itself. For example, in a court proceeding for divorce and custody, the claim for custody is corollary relief. See "action" and "relief.". Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." or a settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

The appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. period

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

Certificate of divorce

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proofEvidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises." of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing. For an overview of this process, go to the How Do I? section of this resource and read How Do I Get my Certificate of Divorce? It's located under Marriage, Separation & Divorce.

Foreign divorce orders

Section 22(1) of the Divorce Act deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter Property & Debt, in the section Dividing Property & Debt.

The do-it-yourself divorce

The only way to obtain an order for divorce is by starting a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the desk order divorceA process in which a divorce order, with or without other corollary relief, is obtained following the respondent's failure to file a Response to Family Claim. A desk order divorce does not require a hearing in court and is the cheapest way to obtain a divorce order. See "corollary relief" and "divorce." process, allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

  1. when the only issue between you and your spouse is getting a divorce; or,
  2. when you have other issues, but those have been settled, either through a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." or an agreement about the terms of a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make..

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus corollary relief, that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent." files a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." and serves it on the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."; the respondent then files a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings." and sometimes a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim.". If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be uncontested. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim." against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the Supreme Court Family Rules.

For a brief summary of this process, go to the How Do I? section of this resource and read How Do I Get Divorced? It's located under Marriage, Separation & Divorce.

Choosing between the sole application process and the joint application process

There are two types of desk order divorce actions:

  1. the sole application process, in which only one spouse is responsible for ushering the process through; and,
  2. the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

  • Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
  • A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
  • In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
  • In a joint application, both spouses must sign the Notice of Family Claim, and both must executeIn contract law, to complete or accomplish; to complete the legal formalities necessary to give a document effect. One "executes" a separation agreement, for example, by signing it in the presence of a witness. an affidavit for the application for the divorce order.

The sole divorce application

These instructions are for the sole divorce application process:

Step One

Prepare your Notice of Family Claim. Make three copies of the original.

Step Two

Go to your local registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. of the British Columbia Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.". Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.

Step Three

Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.

Step Four

Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

Step Five

Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draftA preliminary version of a document; an order prepared following judgment submitted to the court for its approval; to prepare, or ''draw,'' a legal document. of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.

Step Six

Go to the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.

Step Seven

Once you've filed your application, wait four weeks.

Step Eight

Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

Step Nine

Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.

Step Ten

Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.

The joint divorce application

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

  • The parties are known as claimant 1 and claimant 2.
  • A special form, Notice of Family Claim is required.
  • Both parties sign the Notice of Family Claim.
  • The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
  • Both parties must swear an affidavit in support of the application for the divorce order.
  • All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

Step One

Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.

Step Two

Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.") and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.

Step Three

While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.

Step Four

Once you've filed your application, wait four weeks.

Step Five

Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

Step Six

Wait 32 days from the date the order was made. The date will be shown on the first page of the order.

Step Seven

Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

Free services

Access Pro Bono offers free meetings with lawyers who can review your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

The Legal Services Society of BC also has an excellent online step-by-step guide to the divorce process.

Services that are not free

Lawyers

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

Commercial services

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

What happens if a response or counterclaim are filed?

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

  • Sole application: the respondent files a Response to Family Claim or a Counterclaim; or,
  • Joint application: a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an undefended family law caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent." within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

Resources and links

Legislation

Resources

Links


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