December 10, 2015 MasterEditor

Uncontested Divorce

Our law firm offers at a reduced rate the services required to obtain what is often referred to as an ‘uncontested divorce’.  If we are retained to provide this service we usually only require one document from you, namely, your marriage certificate.  The Courts require the government issued document and not a photocopy of your marriage certificate.  If you do not have your marriage certificate we can order it for you and if you were married in B.C. it can be obtained within a short period of time.  If you were married outside of this jurisdiction, such as in a foreign country, it may take a longer period of time to obtain your marriage certificate or registration of marriage.

A spouse may commence divorce proceedings in the superior court of any jurisdiction in which either spouse had been ordinarily resident for a least one year immediately preceding the commencement of the divorce proceeding (Divorce Act, Section 3(1)).  In our province the superior court is the Supreme Court of British Columbia. 

There is only one ground for divorce, namely, breakdown of the marriage as set out in Section 8(1) of the Divorce Act.  A breakdown of a marriage is established only if:

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Most uncontested divorces are based on the grounds of living separate and apart for one year.  When using that as a grounds for a divorce, all that is usually required is that the client will sign an affidavit that confirms the parties have been living separate and apart for at least one year and there is no reasonable prospect of reconciliation between the spouses.  If a client seeks a divorce using one of the other grounds, there is usually much more evidence required such as an admission of the act of adultery and/or medical evidence to support the claim that a spouse has been treated with physical or mental cruelty.

If there are minor children involved, the client will also sign a Child Support Affidavit which sets out the current arrangements with respect to the financial support of the children.  Section 11(1)(b) of the Divorce Act requires the Court to satisfy itself that reasonable arrangements have been made for the support of the children, having regard to the Child Support Guidelines.  If no such arrangements have been made, the Court may refuse to grant the divorce order until such arrangements are in place.

The actual obtaining of the divorce order may not require the parties or their lawyers to attend court.  The reason for this is that most uncontested divorces are done through a process called a ‘desk order’.  Once all of the required documents have been prepared and filed, including affidavits, the court registry will check the documents to ensure that they are properly prepared and meet the requirements of the Divorce Act. The documents are then placed before a judge of the court at which time he or she will sign the divorce order in their office.  This alleviates the need of the parties or their lawyers to attend before the judge in a courtroom setting. 

We are often asked how quick can a divorce order be obtained.  If a client has with them their marriage certificate at the time of their initial consultation with us, we can often obtain an uncontested divorce order within two to three months.  If there is any delay, it is usually due to  difficulty in locating and serving the other spouse or the court is not satisfied with the current child support arrangements. Also, you can commence the divorce proceeding any time after separation but you may have to wait until the separation has lasted one year before you can apply for the divorce order. 

The divorce order will have on it a date when the order was signed by the judge.  With some limited exceptions, all divorce orders are effective 31 days after they are signed by the judge.  In other words, that is when the marriage is effectively dissolved, at which time a party is free to remarry.

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