Script 121 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 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 care of children, spousal support or child support, and dividing family property. In most cases, you’ll probably 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.
How do I get a divorce?
To get divorce, you need to have a court 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’s help for anything more than the divorce order.
What is a desk order divorce?
In this type of court case, one spouse starts a court case which 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 an order in default of the other spouse’s defence. This application is made 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” or an “undefended divorce proceeding.” The process when both spouses start the court case is called a “joint divorce proceeding”. The legal reasons or grounds for granting a divorce are discussed in script 120 on “Requirements for Divorce and Annulment”.
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 when you apply for a divorce, except in special circumstances and with special permission. However, a copy of an original marriage certificate which is certified to be a true copy may be acceptable.
If you were married in British Columbia, you can obtain 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 church certificate 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 sets out the grounds for the divorce and give information about you, your spouse and any children, and gives 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 involve the care and control of children, child support, spousal support or the division of property. 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 a desk order divorce.
Make sure that the names you give in the Notice of Family Claim exactly match the names on your marriage certificate, even if the marriage certificate is wrong.
Third, file the marriage certificate and Notice of Family Claim in court
Once the Notice of Family Claim has been prepared and signed, it must be filed in court along with your marriage certificate. You’ll need to file the original and at least three copies of the Notice of Family Claim.
Fourth, serve the respondent with the Notice of Family Claim by personal service
“Personal service” means physically delivering the Notice of Family Claim to your spouse to make sure he or she knows about the court case. 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 and when your spouse was served.
What if it’s not possible to personally serve the respondent?
If it’s not possible for the respondent to be personally served, other means of letting your spouse know about the divorce are available, called “substitutional service.” You must have a court order to use substitutional service. The court may, for example, make an order allowing the Notice of Family Claim to be served through a classified ad in a local newspaper, or the court may order that the document be given to someone personally known by the respondent, such as his or her parents, a coworker or a roommate.
Fifth, wait a bit. The respondent is allowed a certain amount of time to respond to your claim
Your spouse has 30 days to defend the court case. If the respondent files a Response to Family Claim, your divorce won’t be able to proceed as an undefended divorce.
The respondent may also choose to file a Counterclaim and make a claim for a divorce and other orders against you. For more information on defending a divorce, see to 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 an order granting the divorce, using a Requisition in Form F35 (the document asking for the divorce order), a Divorce Affidavit in Form F38 (the document giving your evidence in support of the divorce order), a Child Support Affidavit in Form F37 if you have children (a document describing the arrangements made for the support of the children), and a draft of the order you want the court to make in Form F52 (the formal divorce order).
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 affidavit.
When divorce proceedings are undefended, a court hearing usually isn’t required
The evidence the court needs to make an order is given in sworn written statements called affidavits. Unless the court decides that further evidence or a full hearing is required, the divorce order can be granted without the need for anyone to attend as a witness.
The court may scrutinize a divorce order that includes property division
If you are asking for an order dividing property 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 may 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 is given custody of the children 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?
A couple isn’t divorced at the time that the divorce order is made. Unless there are special circumstances, the divorce doesn’t take effect until 31 days after the divorce order is granted. After that time, if there’s been no appeal, the court will, on your request, issue a Certificate of Divorce confirming that the divorce order has taken effect.
What about joint divorce proceedings?
If both of you agree to a divorce order, and to any other orders you want the court to make, you can file 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.
Where can you get help or find more information?
- Contact the Legal Services Society (LSS) Family LawLINE: If you are a person with a low income 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 JP Boyd’s BC Family Law Resource at www.bcfamilylawresource.com. Click on “Marriage & Divorce” and then on “Divorce.”
[updated March 2013]
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