Divorce and the Law on Getting Divorced: Difference between revisions

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 every 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.

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 Claimant files a Notice of Family Claim and serves it on the Respondent; the Respondent then files a Response to Family Claim and sometimes a Counterclaim. If the Respondent fails to file a Response to Family Claim, the Claimant's court proceeding is said to be ''uncontested'', meaning 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 judgment'' 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 [http://canlii.ca/t/8mcr Supreme Court Family Rules].

*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.

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim, the three copies and 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>

<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>

<blockquote>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 page.</blockquote>

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take 4 to 8 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.</blockquote>

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:

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 4 to 8 weeks in total.

*The parties are known as Claimant 1 and Claimant 2.

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 page.

<blockquote>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.</blockquote>

<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>

<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>

<blockquote>Once you've filed your application, wait 4 weeks.</blockquote>

<blockquote>Once 4 weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take 4 to 8 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.</blockquote>

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:

With the exception of the special forms of 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.

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 will be available at your local courthouse library.

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 with 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.

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 which offers the forms required for a divorce in British Columbia!