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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.
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, however, you have to start a law suit, even if you and your spouse don’t need the court’s help for anything more than the divorce.
What is an undefended divorce?
In this type of proceeding, one spouse starts the law suit for the divorce and the spouse being sued doesn’t dispute the claims. Because the spouse being sued doesn’t file a Statement of Defence, the divorce proceeds as an “undefended divorce.” This is most likely to occur where most or all issues are settled by agreement (see script 115, “Separation and Separation Agreements”) or in another court action, or where there are no issues to settle.
The 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, “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 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 where you were married to obtain your marriage certificate.
Second, 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 and give information about you, your spouse, any children and your marriage.
These documents also allow you to make other claims, as well as the claim for a divorce. Other claims might include claims about custody, spousal support, child support or 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 Statement of Defence and your divorce won’t be able to proceed as an undefended divorce.
Make sure that the names you give in the Writ of Summons and Statement of Claim match exactly the names on your marriage certificate, even if the marriage certificate is wrong.
Third, file the divorce documents in the court registry
Once the Writ of Summons and Statement of Claim have been prepared and signed, they must be filed in court along with your marriage certificate. Although the Writ of Summons and Statement of Claim are separate documents, 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.
Fourth, serve the defendant with the divorce papers
“Service” means physically delivering the Writ of Summons and Statement of Claim to your spouse to make sure he or she knows about the divorce proceeding. You cannot serve the Writ of Summons and Statement of Claim yourself and must get someone else to do this, and your server must swear an affidavit describing how he or she served your spouse.
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 letting your spouse know about the divorce are available, called “substitutional service.” You must have a court order to use substitutional service. For example, the court may make an order allowing the Writ and Statement of Claim to be served through a classified ad in a local newspaper, or the court may order that the documents can be given to someone personally known by the defendant, such as his or her parents or a coworker or a roommate.
Fifth, wait a bit. The defendant is allowed a certain amount of time to respond to your claim
Your spouse has a certain amount of time to defend the divorce proceeding. If your spouse lives in BC, he or she will have 21 days to file an Appearance and a Statement of Defence, or up to 35 days if he or she lives elsewhere in Canada, 42 days if your spouse lives in the USA and 56 days if he or she lives anywhere else in the world. If the Defendant files a Statement of Defence, your divorce won’t be able to proceed as an undefended divorce
The Defendant 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, “The Defendant in Divorce Proceedings.”
Sixth, if your spouse does nothing, apply for a divorce order
After the time period for your spouse to file an Appearance and Statement of Defence has run out, you can go ahead and apply for an order granting the divorce, using a Requisition (the document asking for the divorce order), an Affidavit (a document with your evidence in support of the divorce order), a Child Support Affidavit if you have children, and a draft of the order you want the court to make.
Note that if your ground for divorce is separation, you can only apply for the divorce order after you and your spouse have lived separately and apart for one year.
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.
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, “Dividing up Family Assets.”
The court needs special information if there are children involved
Even if both of you want the divorce, 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 request, issue a divorce certificate 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 special Writ of Summons and Statement of Claim together. This is called a “joint divorce proceeding.”
Service is not required in joint divorce proceedings and, depending on whether your 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 Writ of Summons and Statement of Claim.
Where can you get help or find more information?
[updated January 2010]
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