Desk Order Divorce: The Do-It-Yourself Divorce Process

This script discusses the desk order divorce proceedings, the do-it-yourself court process that applies where there are no disagreements between you and your spouse relating to the parenting of children, spousal support or child support, and dividing family property and family debt. In many cases, you’ll want to hire a lawyer to handle your divorce, but the information in this script should help you understand the procedure involved.

This script only applies to married spouses. Unmarried spouses and other unmarried couples do not need to get a divorce.

How do I get a divorce?

To get divorced, you need to get a divorce order. Only the court has the ability to divorce a married couple. To get a court order you have to start a court case, even if you and your spouse don’t need the court to make an order about anything else other than the divorce. The legal reasons or grounds for granting a divorce are discussed in script 120 on “Requirements for Divorce and Annulment”.

What is a desk order divorce?

In this type of court case, one spouse starts a court case that the other spouse, the person being sued, doesn’t dispute. Once the time for the other spouse’s defence has come and gone, the spouse who started the court case applies for the divorce order. This application is done by completing a bunch of court forms and filing them in court, and there’s no need for anyone to appear before a judge.

It is possible for both spouses to start the court case together using special court forms. This is a bit cheaper and faster than if only one spouse starts the court case, since there’s no need to have a spouse served with the court forms that start the court case and there‘s no need to wait for a spouse to fail to defend the case.

The process when one spouse starts the court case is called a “sole divorce proceeding.” The process when the spouses start the court case together is called a “joint divorce proceeding.” Both of these processes are called “undefended divorce proceedings.” This script describes the process for the sole divorce proceeding.

First, get your marriage certificate

If you don’t have an original, government-issued marriage certificate, you’ll need to get one. Photocopies won’t be accepted by the court registry, except in special circumstances and with special permission. However, a copy of an original marriage certificate that is certified to be a true copy of the original by a lawyer, notary public or a government official may be acceptable.

If you were married in British Columbia, you can get an original marriage certificate from the Vital Statistics Agency. See www.vs.gov.bc.ca, or call 604.660.2937 in the lower mainland, 250.952.2681 in Greater Victoria, or toll-free 1.800.663.8328 elsewhere in BC for information on applying for a certified copy. If you were married outside of BC, you’ll need to contact the equivalent government agency where you were married to obtain your marriage certificate. Note that it’s not the certificate from the person that performed the marriage that’s needed but the government-issued record of your marriage.

Second, prepare the Notice of Family Claim in Form F3

This is the document that starts the court case. It states the grounds for the divorce and gives information about you, your spouse and any children, as well as the details about your marriage and separation.

The Notice of Family Claim also allows you to ask for other orders along with a divorce order. Other orders might be about the parenting arrangements for your children, child support, spousal support or the division of property and debt. Be careful when you are making other claims. If your spouse doesn’t agree to the claims you are making, he or she will probably file a defence to your case and your divorce won’t be able to proceed as an undefended divorce proceeding.

Third, file your marriage certificate and the Notice of Family Claim in court

Once you have filled out and signed the Notice of Family Claim, it must be filed in court along with your marriage certificate. You’ll need to file the original plus at least three photocopies of the Notice of Family Claim; the court will keep the original and give you the copies back, stamped with the court’s official stamp.

Fourth, serve your spouse with the Notice of Family Claim

Someone who is being sued, even in an undefended divorce proceeding, must be given formal notice about the court case. “Personal service” means arranging for the Notice of Family Claim to be physically delivered to your spouse, and you cannot serve the Notice of Family Claim yourself. You must get someone else to do this, and your server must swear an Affidavit of Personal Service in Form F15 describing how, when and with what your spouse was served.

What if it’s not possible to personally serve your spouse?

If it’s not possible for your spouse to be personally served, for example because you don’t know where he or she lives, other means of letting your spouse know about the divorce are available. This is called “substitutional service.” You must have a court order to use substitutional service.

The court may, for example, make an order allowing notice to be served through a classified ad in a local newspaper, or the court may order that the Notice of Family Claim be given to someone known to your spouse, such as his or her parents, a coworker or a roommate.

Fifth, wait for 30 days

Your spouse has 30 days to defend the court case by filing a Response to Family Claim. If your spouse files a Response to Family Claim, your divorce won’t be able to proceed as an undefended divorce.

In addition to responding to your Notice of Family Claim, your spouse may also choose to file a Counterclaim and make claims against you. For more information on defending a divorce proceeding, see script 122 on “The Respondent in Divorce Proceedings”.

Sixth, if your spouse does nothing, apply for a divorce order

After the 30 days has run out, you can go ahead and apply for the divorce order by filing in court a Requisition in Form F35 (a document asking for the divorce order), a Divorce Affidavit in Form F38 (a document giving your evidence in support of the divorce order) and a draft of the order you want the court to make in Form F52 (the formal divorce order). If you have children you’ll also have to file a Child Support Affidavit in Form F37 (a document describing the arrangements made for the financial support of the children).

Remember that if you are asking for a divorce based on separation, you can only apply for the divorce order after you and your spouse have lived separately and apart for one year. If you are asking for a divorce based on your spouse’s adultery or cruelty toward you, you must provide proof of the adultery or cruelty in your Divorce Affidavit.

When divorce proceedings are undefended, a court hearing usually isn’t required

The evidence the court needs to make an order will be given in the affidavits you have filed in court. Unless the court decides that further evidence or a full hearing is required, the divorce order will usually be made without the need for anyone to attend as a witness.

The court may scrutinize a divorce order that includes division of property or debt

If you are asking for an order dividing family property and family debt other than equally, your affidavit should explain why the unequal division you propose is fair. See script 124 on “Dividing Property and Debts”.

The court will scrutinize a divorce order if there are children

The court will need evidence that “reasonable arrangements” have been made for the financial support of the children. This is the case even if the spouse who has the children most of the time is happy with the support arrangements. The court has a special duty to satisfy itself that the arrangements are appropriate. It needs evidence about your income and your spouse’s income, the children’s living arrangements and the amount of child support being paid. Without this information, the court will not make an order for divorce.

When does the divorce take effect?

You are not divorced on the day that the divorce order is made. Unless there are special circumstances, the divorce will not take effect until 31 days after the divorce order is granted, so you’d better not plan on remarrying within that 31-day period.

Once the 31 days have passed, if your spouse hasn’t filed an appeal of the divorce order, you can ask the court to issue a Certificate of Divorce confirming that the divorce order has taken effect. However, once the 31 days have passed, you will be divorced whether you get the Certificate of Divorce or not.

What about joint divorce proceedings?

If both of you agree to the divorce order, and to any other orders you want the court to make, you can start the divorce proceeding together by filing a Notice of Joint Family Claim in Form F1.

Service is not required in a joint divorce proceeding and, depending on whether the one-year period of separation has passed, you may be able to apply for the divorce order on the same day that you file your Notice of Joint Family Claim. Both of you will sign the Notice of Joint Family Claim and both of you will have to file Divorce Affidavits and, if you have children, Child Support Affidavits.

Where can you get help or find more information?

• Contact the Legal Services Society (LSS) Family LawLINE: If you are a low-income person experiencing a family law issue, you may be eligible for free legal advice over the telephone from a family lawyer. To be considered for this service, contact the LSS Call Centre at 604.408.2172 (Greater Vancouver) or 1.866.577.2525 (call no charge, elsewhere in BC) between 9:30 am and 12:00 pm on weekdays.
• Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca and choose the appropriate guide (either “Sole application” or “Joint application”) at www.familylaw.lss.bc.ca/guides/divorce.
• Visit the Divorce page of the wikibook JP Boyd on Family Law, provided by Courthouse Libraries BC.

[updated October 2014]

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In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A process in which a divorce order, with or without corollary relief, is obtained following the respondent's failure to defend the claim for divorce by filing 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."

Under 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, spouse includes 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 and have had a child together. See "marriage" and "marriage-like relationship."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

The 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."

A mandatory direction of the court that is 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. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

(1) A reply, a rebuttal, an answer to a court proceeding or an application, or (2) a statement as to why a particular claim or application should not succeed.

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

A person appointed by the federal or provincial government 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, subject to appeal.

A court proceeding under the Divorce Act in which a spouse seeks a divorce order. See "divorce."

A 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."

A 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 person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A 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."

In 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."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

Facts, or proof tending to support the existence 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."

(1) A preliminary version of a document, (2) an order prepared following judgment and submitted to the court for its approval, or (3) to prepare, or draw, a legal document.

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In 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 cruelty. See "condonation" and "divorce, grounds of."

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See "act" and "common law."

An 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. See "appellant" and "respondent."