Difference between revisions of "Desk Order Divorce: The Do-It-Yourself Divorce Process"

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”.

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)]].

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.

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.

This information describes the process for the sole divorce proceeding.

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.

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.

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 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 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 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.

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].

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.  

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.

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.  

Your server must swear an affidavit of service in Form F15 describing how, when, and with what your spouse was served.

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.

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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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 Legal Services Society '''Family LawLINE''' provides free legal advice over the telephone to people on a low income experiencing a family law issue.  

:Web: [http://unbundlinglaw.ca/ unbundlinglaw.ca]

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]