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Desk Order Divorce: The Do-It-Yourself Divorce Process (view source)

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{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha De Wit], Brown Henderson Melbye, and [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= October 2018}} {{Dial-A-Law TOC|expanded = divorce}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha De Wit], Brown Henderson Melbye, and [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= October 2018}} {{Dial-A-Law TOC|expanded = 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'''”.
If you and your spouse agree on the issues of parenting, support and property, there’s a fast-track way to get a divorce. Learn how you can apply for a '''desk order divorce'''.


==Understand your legal rights==
{{PLSStorybox
| image = [[File:Roya.png|link=]]
| text      = “Jay and I were married for eight years when we decided to separate. It was all pretty amicable. We made a separation agreement that deals with our children, support, property, and debt. I thought a divorce would be a long and expensive process. But in our case, I learned that we could do it on our own, for under $400, without having to go in front of a judge. We’ll get our divorce order in a couple of months.” <br>– Roya, Terrace, BC
}}
 
==What you should know==


===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 be divorced, you need to get a '''divorce order''' [http://canlii.ca/t/7vbw under the ''Divorce Act'']. In BC, only the Supreme Court can grant this order. So, to get one, you have to apply to that court. This is true even if you and your spouse agree on all your other family law issues and only need a divorce order.


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 (No. 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: having been separated for at least one year, adultery, or cruelty. We explain these in more detail [[Requirements for Divorce and Annulment|in our information on requirements for divorce]].


===A desk-order divorce allows you to avoid going to court===
===What is a desk order 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'''”.  
A '''desk order divorce''' is a process that lets you get a divorce order without having to appear in front of a judge. It’s also called an '''undefended''' or '''uncontested divorce'''. You can apply for a desk order divorce once you and your spouse have resolved any other family law issues.


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.
Either one spouse, or both together, can apply for a desk order divorce in BC Supreme Court. The process involves preparing and filing several court forms. When one spouse starts the court case, the process is called a '''sole application for an uncontested divorce'''. When the spouses start the court case together, it’s called a '''joint application for an uncontested divorce'''. If you’re not sure which procedure to use, it’s a good idea to get legal advice.
 
====You can file on your own====
Here’s how a '''sole''' divorce proceeding typically works. One spouse — let’s say it’s you — starts a BC Supreme Court case by filling out, filing, and serving a court form asking for a divorce. Your spouse agrees and ''doesn’t'' file a response in court. After the deadline for filing a response has passed, you can make an application for a divorce order. This involves completing additional court forms and filing them in court. A judge will review the application and make a decision, usually without either of you having 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.
Another option is that both of you can start the court case together by filling out and filing certain court forms in BC Supreme Court. The joint application is less expensive and faster than if only one spouse starts the court case. This is because there’s no need to serve anyone with the court forms and 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'''.
The rest of the information that follows describes the process for the '''sole application for an uncontested divorce'''.
 
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.  
In a desk order divorce, the material you file in court will include '''affidavits'''. These will give the court the evidence it needs to make a divorce order. An affidavit is a legal document in which a witness makes statements sworn to be 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. No one needs 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 needs 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 children are taken care of. It needs proof of your income and your spouse’s income. It needs to know the children’s living arrangements, and the amount of child support being paid (or an explanation why it isn’t being paid). Without this information, the court won’t 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 aren’t actually divorced the moment the divorce order is made. The divorce won’t take effect until '''31 days after''' the court grants a divorce order. (That’s if there are no special circumstances and '''no one has filed an appeal'''.) So, don’t 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, you’ll be divorced. If you choose to, you can ask the court to issue a '''certificate of divorce''' confirming this. But you’ll be divorced whether you get the certificate 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 uncontested 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.  
With this action, neither spouse has to serve court documents on the other. So you may be able to apply for the divorce order on the same day you file your joint claim. (That’s so long as the one-year period of separation has passed.)


==The steps in the process==
Both you and your spouse must sign the '''notice of joint family claim''' (Form F1). Both of you must also complete '''affidavits'''. These give the court the information it needs to decide if the divorce order is justified. If you have children, one affidavit you’ll both need to prepare and file deals with the child support arrangements you have in place.
 
==The steps in the desk order divorce process==
These steps describe the process for a '''sole application for an uncontested divorce'''.


===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.
You need your '''original''', ''government-issued'' '''marriage certificate''' to apply for a divorce. If you don’t have an original, you have to get a new one.
 
{| class="wikitable"
|align="left"|'''Tip'''
Photocopies of your marriage certificate 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’s '''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 [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics 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 in BC, you can get an original marriage certificate for $27 [https://www2.gov.bc.ca/gov/content/life-events/marriage/marriage-certificates from the Vital Statistics Agency]. You can call the agency at 250-952-2681 in the Victoria area, 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 were married outside of BC, you’ll need to contact the equivalent government agency to get an original marriage certificate or a certified true 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 have a foreign marriage certificate that isn’t in English, you’ll 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.
If you were married outside of Canada and can’t get an original, government-issued marriage certificate, you can’t get a divorce by desk order. Instead, you may need to apply to court to bypass filing a marriage certificate. In your material, you’ll need to explain why you can’t get the certificate. If possible, get legal advice if you find yourself in this situation.


===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 form called the '''notice of family claim''' (Form F3) starts a divorce proceeding in Supreme Court. This form states the basis for the divorce (such as being separated for at least a year). It also gives information about you, your spouse, and any children, as well as the details of your marriage and separation. If you file the notice, you are the '''claimant'''. Your spouse is called the '''respondent'''.


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.  
The notice form also allows you to ask for other orders besides a divorce order. Other orders might involve 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.  
Along with the notice form, you also need to complete and file a '''registration of divorce proceedings''' form. This form helps the court check on whether there are other divorce proceedings in your or your spouse’s name that have been started in Canada.


===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’ve filled out and signed the notice form, you must '''file''' it in court, along with your marriage certificate. You’ll need to pay a $210 filing fee. 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 the court documents on 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.  
Anyone who’s being sued must be given formal notice of the court case; this applies even to a sole application for an uncontested divorce proceeding. Your spouse must be served by '''personal service'''. That means arranging for the court-filed notice of family claim to be physically delivered to them. You can’t serve the document yourself. You must have someone else, who’s at least 19 years old, leave the filed notice form with your spouse.


====You must prove the service====
====You must prove personal service====
Your server must swear an affidavit of service in Form F15 describing how, when, and with what your spouse was served.
The person who serves the court documents must swear an '''affidavit of service''' (Form F15). In it, they’ll describe 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 — there are other ways 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.
If your spouse doesn’t agree with the claims you’re making, they have 30 days to defend the court case by filing a '''response''' (Form F4). If they do file a response, you can’t get a desk order divorce, as your divorce is now considered '''contested'''.


In addition to responding to your claim, your spouse may also file a '''counterclaim''' and make claims against you.
Your spouse may choose to respond to your claim '''and also''' file a '''counterclaim''' (Form F5). In the counterclaim, your spouse can make their own family law claims against you.


{| class="wikitable"
{| class="wikitable"
|align="left"|'''Tip'''
|align="left"|'''Tip'''
If you have been served with divorce papers, see our information on [[Responding to Divorce Proceedings (No. 122)|responding to divorce proceedings (no. 122)]].
If you’ve been served with divorce papers, and you don’t agree with the other party’s claims, you have '''30 days''' to file a response in court. [[Responding to Divorce Proceedings|See our information on responding to divorce proceedings]] — and get legal advice, if possible.
|}
|}


===Step 6. If your spouse does nothing, apply for a divorce order===
===Step 6. If your spouse doesn’t respond, apply for a divorce order===
After the 30 days has run out, you can apply for the divorce order by filing in court:
If the 30 days have passed and your spouse hasn’t filed a response, you can apply for a '''divorce order'''. The filing fee is $80. You must prepare and file the following forms 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  
* A '''requisition''' in Form F35, which asks for a divorce order.
*your '''affidavit''' in Form F38 giving the court your evidence in support of the divorce order  
* The '''affidavit of service''' in Form F15, which says your spouse was personally served with the notice of family claim (the form that started the court case). An affidavit is a legal document in which a witness makes statements they swear are true.
*a draft of the '''divorce order''' in Form F52
* Your '''affidavit''' in Form F38, which gives the court your evidence in support of a divorce order.
* A '''certificate of pleadings''', which tells the judge that the documents filed in your case are correct and complete.
* A draft of the '''final divorce''' order in Form F52.
 
If you have children, you’ll also have to file a '''child support affidavit''' (Form F37). This affidavit gives the court more information about your income and your spouse’s income, your children’s living arrangements, and the child support amount being paid.


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.
==Who can help==


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.
===With more information===
Legal Aid BC’s '''Family Law in BC website''' has free step-by-step guides for applying for a desk order divorce.


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)|dividing property and debts, no. 124]]).
* [https://familylaw.lss.bc.ca/separation-divorce/getting-a-divorce/do-your-own-uncontested-divorce Visit website]


==Get help==
The BC government has a free step-by-step online tool, the '''Online Divorce Assistant''', to help couples without children apply for a desk order divorce together.


===With your divorce===
* [https://justice.gov.bc.ca/divorce Visit website]
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
The wikibook ''JP Boyd on Family Law'' gives a step-by-step explanation of how to get divorced by desk order in BC. It also includes completed sample forms.
:Toll-free: 1-866-577-2525
:Web: [https://lss.bc.ca/legal_aid/FamilyLawLINE.php 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.
* [[JP Boyd on Family Law|Visit website]]
:Web: [http://unbundlinglaw.ca/ unbundlinglaw.ca]


===More information===
=== Free and low-cost legal help===
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 '''Family LawLINE''', operated by Legal Aid BC, is staffed with lawyers who provide free family law legal advice over the telephone to people who can’t afford a lawyer.
:Web: [http://www.familylaw.lss.bc.ca/guides/divorce familylaw.lss.bc.ca]


The wikibook '''''JP Boyd on Family Law''''' includes how-to information on starting a divorce action together with sample forms.
* Call 604-408-2172 (Metro Vancouver) or 1-866-577-2525 (toll-free)
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=How_Do_I_Start_a_Family_Law_Action_in_the_Supreme_Court%3F wiki.clicklaw.bc.ca]
* [https://familylaw.lss.bc.ca/call/family-lawline Visit website]


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.
[[Free and Low-Cost Legal Help|Also see our information on free and low-cost legal help]]. It explains options such as pro bono services, legal clinics, and advocates.
:Web: [https://justice.gov.bc.ca/divorce justice.gov.bc.ca/divorce]


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