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Difference between revisions of "Divorce and the Law on Getting Divorced"
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Divorce and the Law on Getting Divorced (view source)
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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 lawyer. | 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 lawyer. | ||
The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter | The criteria that must be met to obtain an annulment ― 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== | ==Preconditions for applying for a divorce in BC== | ||
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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. | 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 | 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=== | ===Cruelty=== | ||
A spouse who claims that the other spouse is guilty of cruelty must prove | 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 damages 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. | 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. | ||
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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. | 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 act 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. | ''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 act 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=== | ===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 support 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 Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero. | 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 support 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 Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount 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 parent 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 obligation to pay child support without fixing an amount payable. | The only possible exception to this rule would be if the parent 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 obligation to pay child support without fixing an amount payable. | ||
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*if there are children, an adequate amount of child support is being paid. | *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 judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to | It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant 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 relief=== | ===Corollary relief=== | ||
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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. | 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 | 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 application, 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 Family Law Matters|Property & Debt]], in the section [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]]. | 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 Family Law Matters|Property & Debt]], in the section [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]]. | ||
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The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order 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. | The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order 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 | 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: | Generally speaking, a desk order divorce is appropriate in two situations: | ||
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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 [http://canlii.ca/t/8mcr Supreme Court Family Rules]. | 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 [http://canlii.ca/t/8mcr Supreme Court Family Rules]. | ||
For a <span class="noglossary">brief</span> 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. | For a <span class="noglossary">brief</span> 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=== | ===Choosing between the sole application process and the joint application process=== | ||
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'''Step Two''' | '''Step Two''' | ||
<blockquote>Go to your local registry of the British Columbia Supreme Court. 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 court fee | <blockquote>Go to your local registry of the British Columbia Supreme Court. 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.</blockquote> | ||
'''Step Three''' | '''Step Three''' | ||
<blockquote>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 | <blockquote>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.</blockquote> | ||
'''Step Four''' | '''Step Four''' | ||
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'''Step Six''' | '''Step Six''' | ||
<blockquote>Go to the court registry 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 court fee | <blockquote>Go to the court registry 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.</blockquote> | ||
'''Step Seven''' | '''Step Seven''' | ||
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'''Step Ten''' | '''Step Ten''' | ||
<blockquote>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 | <blockquote>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.</blockquote> | ||
===The joint divorce application=== | ===The joint divorce application=== | ||
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'''Step Two''' | '''Step Two''' | ||
<blockquote>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 affidavit) and pay the court fee | <blockquote>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 affidavit) 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.</blockquote> | ||
'''Step Three''' | '''Step Three''' | ||
<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the court fee | <blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote> | ||
'''Step Four''' | '''Step Four''' | ||
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'''Step Seven''' | '''Step Seven''' | ||
<blockquote>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 court fee | <blockquote>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.</blockquote> | ||
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. | 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. | ||
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The [http://www.cle.bc.ca/ 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 [http://www.cle.bc.ca/ 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 [http://www.familylaw.lss.bc.ca/guides/divorce/ Legal Services Society of BC] also has an excellent online step-by-step guide to the divorce process | The [http://www.familylaw.lss.bc.ca/guides/divorce/ Legal Services Society of BC] also has an excellent online step-by-step guide to the divorce process. | ||
===Services that are not free=== | ===Services that are not free=== | ||
