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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 at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses undefended and joint divorce proceedings, where there are no disagreements between you and your spouse relating to custody, access, spousal or child support, and dividing your 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.
What is an undefended divorce?
In this type of proceeding, one spouse asks the other for a divorce, and the spouse being sued doesn’t dispute any of the claims. The person who starts an undefended divorce proceeding is the “plaintiff.” The other spouse is the “defendant.” Because the defendant doesn’t file a Statement of Defence, the divorce proceeds on an undefended basis. This is most likely to occur where most or all issues are settled by agreement (see script 115 on “Separation and Separation Agreements”).
The BC Supreme Court is the court that handles all divorces, including undefended divorces. The legal reasons or grounds for granting a divorce are discussed in script 120 on “Requirements for Divorce and Annulment.”
The first step is to obtain the marriage certificate
If you don’t have an original marriage certificate issued by a government agency in the province or country where you were married, you’ll need to obtain one. A copy won’t be accepted by the court registry when you apply for a divorce, except in special circumstances and with special permission. However, a certified true copy of an original marriage certificate 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 Vancouver, 250.952.2681 in Victoria, or toll-free 1.800.663.8328 elsewhere in BC for information on applying for a certified copy. Note that it’s not the church certificate that’s needed. If you were married outside of BC, you’ll need to contact the equivalent government agency in that province or country to obtain your marriage certificate.
The next step is to prepare the Writ of Summons and Statement of Claim
These are the documents that start the divorce. They set out the grounds for the divorce, plus information about the place of birth for you and your spouse, current addresses, date and place of your marriage, and details of any children. The documents also contain information about other claims that might be made, such as for custody, spousal and/or child support, and division of property. Depending on the claims and how much you know about your spouse, the documents may also contain a lot of detailed financial information too. Note that the names in the Writ of Summons and Statement of Claim must match exactly the names on your marriage certificate.
The divorce documents must then be “filed” in the court registry
Once the Writ of Summons and Statement of Claim have been prepared and signed, they must be date-stamped and filed, along with the marriage certificate or certified copy, in the Supreme Court Registry. Although the Writ of Summons and Statement of Claim are separate documents, to save money, they’re usually stapled together and treated as one document. You’ll need to file the original and at least three copies of the Writ and Statement of Claim.
The defendant has to be “served” with the divorce papers
This means that the Writ of Summons and Statement of Claim must be given to or communicated to your spouse, so he or she knows about the divorce proceeding. An attempt must first be made to “personally serve” the defendant, meaning to give a copy to him or her personally. You cannot serve the Writ of Summons and Statement of Claim yourself and must get someone else to do this.
What if it’s not possible to personally serve the defendant?
If it’s not possible for the defendant to be personally served, other means of communicating the divorce documents to him or her are available, called “substitutional service.” But you must have a court order to use substitutional service. For example, if your spouse’s whereabouts are unknown, the court may make an order allowing the Writ and Statement of Claim to be served through a classified ad in a local newspaper, meaning that notice of the divorce proceeding is published in the newspaper. Or the court may order that the documents can be given to someone personally known by the defendant, for example, your spouse’s parents.
The defendant is allowed a certain amount of time to respond to the claim
To defend the divorce or any of the claims being made, your spouse – if he or she lives in BC – has seven days after the Writ of Summons and Statement of Claim have been served (not including the date of service) to file a document called an Appearance. If the defendant is out of province, he or she has longer to respond. A Statement of Defence must also be filed within a certain period of time. If an Appearance has been filed, the Statement of Defence must be filed within 21 days after the Writ of Summons and Statement of Claim have been served (for a BC defendant). The Defendant may also choose to file a Counterclaim that asks for a divorce from you or makes other claims, such as for custody or financial support.
For more information on defending a divorce, refer to script 122 on “The Defendant in Divorce Proceedings.”
On the other hand, your spouse may do nothing
If your spouse also wants the divorce, or has no grounds for contesting it, he or she may do nothing and simply not defend the divorce.
If your spouse does nothing, you can apply for a divorce order
After the appropriate time period has run out – 21 days after serving a defendant who lives in BC – you can go ahead and apply for an order granting the divorce.
However, you can only apply for the divorce order (by filing the “final stage” documents) after clearance has been issued from the Central Registry for Divorce Proceedings in Ottawa. This clearance can take several weeks, sometimes months, from the date when you first filed your Writ of Summons and Statement of Claim. You can call the divorce desk at your Supreme Court Registry to check if clearance has been obtained for your file. After clearance has been obtained, it can take up to another eight weeks for your application to be processed and to get your divorce order.
Note that if your grounds for divorce are that you have been living separately and apart for one year, then your “final stage” documents can only be filed if you and your spouse have been separated for at least one year when you file those final stage documents.
When divorce proceedings are undefended, a court hearing usually isn’t required
The evidence the court needs 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. As a practical matter, this process is more likely to run smoothly if the defendant signs the order being requested to show his or her approval of the content of the order.
The court may scrutinize a divorce order that includes property division
If the division of property substantially departs from equal division, then the supporting affidavit should explain why unequal division is a fair solution. See script 124 on “Dividing up Family Assets.”
The court needs special information if there are children involved
Even if both of you want the divorce, the court needs 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 the incomes for both of you, the circumstances in which the children are living, the expenses for both of you, and whether or not the children have any special requirements. Without this evidence, 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 the appeal period has expired, which is thirty-one days after the divorce order is granted. After that time, if there’s been no appeal, the court, on request, will issue a certificate saying that a divorce has been granted.
What about joint divorce proceedings?
If one spouse isn’t suing the other and both of you agree to the divorce, you can file a joint Writ of Summons and Statement of Claim and ask for a joint divorce order. But you must both agree to all the details, such as custody, access, and spousal or child support. Because you’re making a joint application, in some registry locations, and depending on whether your one-year period of separation has passed, you may not have to wait to take the next step, which is applying for the divorce order. But even if you are entitled to file your “final stage” documents on the same day, you’ll likely still have to wait a few weeks to get clearance from Ottawa before you can file your final stage documents and get your divorce order.
There is legal authority that suggests a consent order made in joint divorce proceedings is more easily challenged after it’s made than an order that isn’t made by consent. In other words, the consent order in joint divorce proceedings is more like a contract or agreement and less like a court order made after a hearing. This suggests that a joint divorce proceeding may not be a good idea if the agreement you have with your spouse is tenuous (or if he or she questions it at all) at the time you are requesting a divorce. If this is the case, it would be better for you to file your own Writ of Summons and Statement of Claim, rather than proceed by way of a joint divorce.
Where can you get help or find more information?
[updated September 2007]
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