Difference between revisions of "Desk Order Divorce: The Do-It-Yourself Divorce Process"
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If you and your spouse agree on the issues of parenting, support and property, there is a fast-track way to get a divorce. You can apply for a “desk-order divorce”. | If you and your spouse agree on the issues of parenting, support and property, there is a fast-track way to get a divorce. You can apply for a “desk-order divorce”. | ||
=Understand your legal rights= | ==Understand your legal rights== | ||
==You need a divorce order to end a marriage== | ===You need a divorce order to end a marriage=== | ||
To get divorced, you need to get a '''divorce order''' under the ''[http://canlii.ca/t/7vbw Divorce Act]''. In BC, only the Supreme Court can grant this order. To get a divorce order, you have to start a court case. This is so even if you and your spouse agree on everything and don’t need the court to make an order about anything other than the divorce. | To get divorced, you need to get a '''divorce order''' under the ''[http://canlii.ca/t/7vbw Divorce Act]''. In BC, only the Supreme Court can grant this order. To get a divorce order, you have to start a court case. This is so even if you and your spouse agree on everything and don’t need the court to make an order about anything other than the divorce. | ||
To get a divorce, you must prove your marriage has broken down. You can show '''marriage breakdown''' in three ways. We explain these ways in our information on [[Requirements for Divorce and Annulment (Script 120)|the requirements for divorce (no. 120)]]. | To get a divorce, you must prove your marriage has broken down. You can show '''marriage breakdown''' in three ways. We explain these ways in our information on [[Requirements for Divorce and Annulment (Script 120)|the requirements for divorce (no. 120)]]. | ||
==A desk-order divorce allows you to avoid going to court== | ===A desk-order divorce allows you to avoid going to court=== | ||
A '''desk-order divorce''' is a process that lets you get a divorce order without going to court. It’s also called an “'''undefended'''” or “'''uncontested divorce'''”. | A '''desk-order divorce''' is a process that lets you get a divorce order without going to court. It’s also called an “'''undefended'''” or “'''uncontested divorce'''”. | ||
Here’s how it works. One spouse starts a court case against the other spouse, who doesn’t oppose the divorce order. Once the deadline for a response passes, the spouse bringing the lawsuit can apply for the divorce order. This application involves completing several court forms and filing them in court. No one has to appear before a judge. | Here’s how it works. One spouse starts a court case against the other spouse, who doesn’t oppose the divorce order. Once the deadline for a response passes, the spouse bringing the lawsuit can apply for the divorce order. This application involves completing several court forms and filing them in court. No one has to appear before a judge. | ||
===You can file jointly=== | ====You can file jointly==== | ||
Alternatively, 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 and there‘s no need to wait for the response deadline. | Alternatively, 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 and there‘s no need to wait for the response deadline. | ||
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This information describes the process for the sole divorce proceeding. | This information describes the process for the sole divorce proceeding. | ||
===You give evidence without going to court=== | ====You give evidence without going to court==== | ||
The evidence the court needs to make an order will be given in '''affidavits''' you file in court. An affidavit is a legal document where a witness makes statements about facts they say are true. | The evidence the court needs to make an order will be given in '''affidavits''' you file in court. An affidavit is a legal document where a witness makes statements about facts they say are true. | ||
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. | 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. | ||
==If you have children together== | ===If you have children together=== | ||
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 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. | 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 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 the divorce takes effect== | ===When the divorce takes effect=== | ||
You are not divorced on the day the divorce order is made. Unless there are special circumstances, the divorce will take effect '''31 days after the divorce order is granted'''. You should not plan on remarrying within that 31-day period. | You are not divorced on the day the divorce order is made. Unless there are special circumstances, the divorce will take effect '''31 days after the divorce order is granted'''. 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. | 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. | ||
==If you bring joint divorce proceedings== | ===If you bring 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 '''joint divorce proceeding'''. | 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 '''joint divorce proceeding'''. | ||
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=The steps involved= | ==The steps involved== | ||
==Step 1. Get your marriage certificate== | ===Step 1. 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. A copy of an original marriage certificate may be acceptable if it is certified to be a true copy of the original by a lawyer, notary public, or a government official. | 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. A copy of an original marriage certificate may be acceptable if it is certified to be a true copy of the original by a lawyer, notary public, or a government official. | ||
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If you were married outside of Canada and can’t get an original, government-issued marriage certificate, you can’t get a desk-order divorce. Instead, you will need to apply to court to do away with the need for a marriage certificate. | If you were married outside of Canada and can’t get an original, government-issued marriage certificate, you can’t get a desk-order divorce. Instead, you will need to apply to court to do away with the need for a marriage certificate. | ||
==Step 2. Complete the form to start the court case== | ===Step 2. Complete the form to start the court case=== | ||
A document called a '''notice''' starts the court case. Supreme Court Form F3 is the notice form for a sole divorce proceeding. The notice states the basis for the divorce and gives information about you, your spouse and any children, as well as the details of your marriage and separation. You can download the notice and other divorce forms from the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms BC government website]. | A document called a '''notice''' starts the court case. Supreme Court Form F3 is the notice form for a sole divorce proceeding. The notice states the basis for the divorce and gives information about you, your spouse and any children, as well as the details of your marriage and separation. You can download the notice and other divorce forms from the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms BC government website]. | ||
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If your spouse doesn’t agree to the claims you are making, they can file a '''response'''. If they do so, you can’t get a desk-order divorce. | If your spouse doesn’t agree to the claims you are making, they can file a '''response'''. If they do so, you can’t get a desk-order divorce. | ||
==Step 3. File your documents in court== | ===Step 3. File your documents in court=== | ||
Once you have filled out and signed the notice form, you must '''file''' it in court, along with your marriage certificate. You have to file the original notice form together with at least three photocopies. The court keeps the original and gives you the copies, stamped with the court’s official stamp. | Once you have filled out and signed the notice form, you must '''file''' it in court, along with your marriage certificate. You have to file the original notice form together with at least three photocopies. The court keeps the original and gives you the copies, stamped with the court’s official stamp. | ||
==Step 4. Serve your spouse with the notice== | ===Step 4. Serve your spouse with the notice=== | ||
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 to be physically delivered to your spouse. You cannot serve the document yourself. You must get someone else, who is at least 19 years old, to leave the filed notice form with your spouse. | 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 to be physically delivered to your spouse. You cannot serve the document yourself. You must get someone else, who is at least 19 years old, to leave the filed notice form with your spouse. | ||
===You must prove the service=== | ====You must prove the service==== | ||
Your server must swear an affidavit of service in Form F15 describing how, when, and with what your spouse was served. | Your server must swear an affidavit of service in Form F15 describing how, when, and with what your spouse was served. | ||
===If personal service is not possible=== | ====If personal service is not possible==== | ||
If your spouse can’t be personally served — for example, because you don’t know where they live — other ways are available to let them know about the court action. This is called '''substitutional service''' or '''alternative service'''. You must have a court order to use this type of service. | If your spouse can’t be personally served — for example, because you don’t know where they live — other ways are available to let them know about the court action. 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 be given to someone your spouse knows, such as their parents, a co-worker or a roommate. | 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 be given to someone your spouse knows, such as their parents, a co-worker or a roommate. | ||
==Step 5. Wait for 30 days== | ===Step 5. Wait for 30 days=== | ||
Your spouse has 30 days to defend the court case by filing a '''response''' in Form F4. If your spouse files a response, you can’t get a desk-order divorce. | Your spouse has 30 days to defend the court case by filing a '''response''' in Form F4. If your spouse files a response, you can’t get a desk-order divorce. | ||
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==Step 6. If your spouse does nothing, apply for a divorce order== | ===Step 6. 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: | After the 30 days has run out, you can apply for the divorce order by filing in court: | ||
*a '''requisition''' in Form F35; this is a document asking for the divorce order | *a '''requisition''' in Form F35; this is a document asking for the divorce order | ||
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=Get help= | ==Get help== | ||
==With your divorce== | ===With your divorce=== | ||
The Legal Services Society '''Family LawLINE''' provides free legal advice over the telephone to people on a low income experiencing a family law issue. | The Legal Services Society '''Family LawLINE''' provides free legal advice over the telephone to people on a low income experiencing a family law issue. | ||
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:Web: [http://unbundlinglaw.ca/ unbundlinglaw.ca] | :Web: [http://unbundlinglaw.ca/ unbundlinglaw.ca] | ||
==More information== | ===More information=== | ||
The Legal Services Society’s '''Family Law in BC website''' features uncontested divorce guides that include step-by-step instructions and blank forms you'll need. | The Legal Services Society’s '''Family Law in BC website''' features uncontested divorce guides that include step-by-step instructions and blank forms you'll need. | ||
:Web: [http://www.familylaw.lss.bc.ca/guides/divorce familylaw.lss.bc.ca] | :Web: [http://www.familylaw.lss.bc.ca/guides/divorce familylaw.lss.bc.ca] | ||
Revision as of 17:48, 24 January 2019
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Dial-A-Law features free information on the law in British Columbia in over 130 topic areas. A service of People's Law School, Dial-A-Law is available on Clicklaw Wikibooks, its own website at dialalaw.ca, and on the telephone at 1-800-565-5297. |
If you and your spouse agree on the issues of parenting, support and property, there is a fast-track way to get a divorce. You can apply for a “desk-order divorce”.
Understand your legal rights
You need a divorce order to end a marriage
To get divorced, you need to get a divorce order under the Divorce Act. In BC, only the Supreme Court can grant this order. To get a divorce order, you have to start a court case. This is so even if you and your spouse agree on everything and don’t need the court to make an order about anything other than the divorce.
To get a divorce, you must prove your marriage has broken down. You can show marriage breakdown in three ways. We explain these ways in our information on the requirements for divorce (no. 120).
A desk-order divorce allows you to avoid going to court
A desk-order divorce is a process that lets you get a divorce order without going to court. It’s also called an “undefended” or “uncontested divorce”.
Here’s how it works. One spouse starts a court case against the other spouse, who doesn’t oppose the divorce order. Once the deadline for a response passes, the spouse bringing the lawsuit can apply for the divorce order. This application involves completing several court forms and filing them in court. No one has to appear before a judge.
You can file jointly
Alternatively, 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 and there‘s no need to wait for the 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.
This information describes the process for the sole divorce proceeding.
You give evidence without going to court
The evidence the court needs to make an order will be given in affidavits you file in court. An affidavit is a legal document where a witness makes statements about facts they say are true.
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.
If you have children together
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 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 the divorce takes effect
You are not divorced on the day the divorce order is made. Unless there are special circumstances, the divorce will take effect 31 days after the divorce order is granted. 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.
If you bring 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 joint divorce proceeding.
Service is not required in a joint divorce proceeding. 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 you file your joint claim. Both of you will sign the notice of joint claim. Both of you will file affidavits giving the court the information it needs to decide if the divorce order is justified. If you have children, you will also both have to file an affidavit dealing with child support. This affidavit gives the court more information about your income and the arrangements for child support.
The steps involved
Step 1. 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. A copy of an original marriage certificate may be acceptable if it is certified to be a true copy of the original by a lawyer, notary public, or a government official.
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.
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 get a desk-order divorce. Instead, you will need to apply to court to do away with the need for a marriage certificate.
Step 2. Complete the form to start the court case
A document called a notice starts the court case. Supreme Court Form F3 is the notice form for a sole divorce proceeding. The notice states the basis for the divorce and gives information about you, your spouse and any children, as well as the details of your marriage and separation. You can download the notice and other divorce forms from the BC government website.
The notice form 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 response. If they do so, you can’t get a desk-order divorce.
Step 3. File your documents in court
Once you have filled out and signed the notice form, you must file it in court, along with your marriage certificate. You have to file the original notice form together with at least three photocopies. The court keeps the original and gives you the copies, stamped with the court’s official stamp.
Step 4. Serve your spouse with the notice
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 to be physically delivered to your spouse. You cannot serve the document yourself. You must get someone else, who is at least 19 years old, to leave the filed notice form with your spouse.
You must prove the service
Your server must swear an affidavit of service in Form F15 describing how, when, and with what your spouse was served.
If personal service is not possible
If your spouse can’t be personally served — for example, because you don’t know where they live — other ways are available to let them know about the court action. 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 be given to someone your spouse knows, such as their parents, a co-worker or a roommate.
Step 5. Wait for 30 days
Your spouse has 30 days to defend the court case by filing a response in Form F4. If your spouse files a response, you can’t get a desk-order divorce.
In addition to responding to your claim, your spouse may also file a counterclaim and make claims against you.
| Tip
If you have been served with divorce papers, see our information on responding to divorce proceedings (no. 122). |
Step 6. 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; this is a document asking for the divorce order
- the affidavit of service saying your spouse was personally served with the notice that started the court case
- your affidavit in Form F38 giving the court your evidence in support of the divorce order
- a draft of the divorce order in Form F52
If you have children, you will also have to file an affidavit dealing with child support in Form F37. This affidavit gives the court more information about your income and your spouse’s income, and the arrangements for child support.
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 affidavit, plus supporting evidence from your spouse or a witness to the adultery or cruelty.
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 (for more on this topic, see our information on dividing property and debts, no. 124).
Get help
With your divorce
The Legal Services Society Family LawLINE provides free legal advice over the telephone to people on a low income experiencing a family law issue.
- Telephone: 604-408-2172 in Greater Vancouver
- Toll-free: 1-866-577-2525
- Web: legalaid.bc.ca
The BC Family Law Unbundling Roster features family lawyers and paralegals who offer “unbundled legal services”, where you hire them to help with part of a legal matter.
- Web: unbundlinglaw.ca
More information
The Legal Services Society’s Family Law in BC website features uncontested divorce guides that include step-by-step instructions and blank forms you'll need.
- Web: familylaw.lss.bc.ca
The wikibook JP Boyd on Family Law includes how-to information on starting a divorce action together with sample forms.
- Web: wiki.clicklaw.bc.ca
The Online Divorce Assistant is a free online tool from the BC government that can help you fill out the forms for a joint divorce under certain circumstances.
[updated October 2018]
The above was last reviewed for legal accuracy by Samantha De Wit, Brown Henderson Melbye, and Zahra H. Jimale, Jimale Law Corporation.
 Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.
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