Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)
|The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.|
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 do not need to get a divorce.
- 1 How do I get a divorce?
- 2 What is a desk order divorce?
- 3 First, get your marriage certificate
- 4 Second, prepare the Notice of Family Claim in Form F3
- 5 Third, file your marriage certificate and the Notice of Family Claim in court
- 6 Fourth, serve your spouse with the Notice of Family Claim
- 7 What if it’s not possible to personally serve your spouse?
- 8 Fifth, wait for 30 days
- 9 Sixth, if your spouse does nothing, apply for a divorce order
- 10 When divorce proceedings are undefended, a court hearing usually isn’t required
- 11 The court may scrutinize a divorce order that includes division of property or debt
- 12 The court will scrutinize a divorce order if there are children
- 13 When does the divorce take effect?
- 14 What about joint divorce proceedings?
- 15 Where can you get help or find more information?
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 against the other spouse and the spouse being sued doesn’t oppose the divorce order. Once the deadline for the spouse being sued to file a response to the court case has come and gone, the spouse who started the court case applies for the desk 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 response deadline to pass.
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 an original marriage certificate or a certified copy. 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 basis 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. If your spouse doesn’t agree to the claims you are making, he or she has the right to file a defence to your case and your divorce won’t be able to proceed as an undefended divorce proceeding.
When preparing your Notice of Family Claim and before filing it at the court, you should speak with a family law lawyer to makes sure your Notice of Family Claim contains all claims you need to make to resolve all issues between you and your spouse.
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. Your spouse must be served by way of personal service, which means arranging for the filed Notice of Family Claim to be physically delivered to your spouse. You cannot serve the Notice of Family Claim yourself. You must get someone else, who is at least 19 years old leave the Notice of Family Claim with your spouse,, 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 court action are available. This is called “substitutional service” or “alternative service”. You must have a court order to use this type of 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 [[The Respondent in Divorce Proceedings (Script 122)|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 a court hearing.
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 make sure that the financial arrangements for the children 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 or an explanation as to why child support is not 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. 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.
- 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”).
- Check the BC Family Law Unbundling Roster for family lawyers and paralegals willing to perform discrete tasks for clients.
- Visit the Divorce page of the wikibook JP Boyd on Family Law, provided by Courthouse Libraries BC.
[updated April 2017]
The above was last reviewed for accuracy by Zahra H. Jimale.
|© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.|