Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)

From Clicklaw Wikibooks

This script explains desk order divorce, the do-it-yourself court process that you can use if there are no disagreements between you and your spouse on the parenting of children, spousal support or child support, and dividing family property and family debt. But you may still want to hire a lawyer to handle your divorce.

This script only applies to married spouses. Unmarried spouses do not need to get a divorce.

How do I get a divorce?

To get divorced, you need to get a divorce order from the BC Supreme Court. Only this court can 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 but the divorce. The legal reasons or grounds for granting a divorce are discussed in script 120 on “Requirements for Divorce and Annulment”.

Online Divorce Assistant

If you don’t have children and you and your spouse agree to get a divorce, you can try the BC government’s online divorce assistant. You and your spouse also have to agree on all family law issues that apply to you, such as spousal support and the division of family property and debts. Eventually, people with children may be able to use this tool.

What is a desk order divorce?

It’s a do-it-yourself divorce. One spouse sues 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 passed, the spouse who sued applies for the desk divorce order. This application is done by completing several court forms and filing them in court. No one has to appear before a judge.

Both spouses can 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, because there’s no need to serve a spouse with the court forms that start the court case and there‘s no need to wait for response deadline.

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 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 have to get one. Photocopies won’t be accepted by the court registry, except in special cases and with special permission. But 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. Call 604.660.2937 in the lower mainland, 250.952.2681 in Greater Victoria, or toll-free 1.888.876.1633 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 get an original marriage certificate or a certified copy. It’s not the certificate from the person who performed the marriage that’s needed, but the government-issued record of your marriage.

If you have a foreign marriage certificate not in English, you will also have to file a certified English translation of the foreign marriage certificate.

If you were married outside of Canada and can’t get an original, government-issued marriage certificate, you can’t do a desk order divorce. Instead, you will need to hire a lawyer to help you apply to do away with the need for a marriage certificate.

Second, prepare the Notice of Family Claim in Form F3

The Form 3 document 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. Form 3 and most of the other forms this script mentions are on the Supreme Court Family Rules Forms website.

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, they can file a defence to your case. Then you can’t 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 make sure your Notice of Family Claim has all the 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, you must file it in court, along with your marriage certificate. You have to file the original plus at least three photocopies of the Notice of Family Claim. The court keeps the original and gives you the copies, 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 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 to 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 you can’t personally serve your spouse?

If you can’t personally serve your spouse, for example, because you don’t know where they live, other ways of letting them 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, allow notice to be served through a classified ad in a local newspaper, or it may order that the Notice of Family Claim be given to someone your spouse knows, such as their 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 can’t proceed as an undefended divorce.

In addition to responding to your Notice of Family Claim, your spouse may also file a Counterclaim and make claims against you.

If you have been served with a Notice of Family Claim that includes claims for relief other than just a divorce, you should review the claim with a lawyer to see if you must file a Response and Counterclaim.

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 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)
  • a draft of the order you want the court to make in Form F52 (the formal divorce order)

If you have children, you will also have to file a Child Support Affidavit in Form F37 (a document describing the arrangements for the financial support of the children).

If you are asking for a divorce based on separation, you can apply for the divorce order only 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, plus supporting evidence from your spouse or a witness to the adultery or cruelty.

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, it will usually make the divorce order without requiring anyone to attend a court hearing.

The court may review 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 is fair. See script 124 on “Dividing Property and Debts”.

The court will review 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 true 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 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 take effect 31 days after the divorce order is granted, so you should 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.

More information

[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.

© 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.

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