When spouses separate, it is common to hear the phrase “Our marriage is over.” But when is it officially over? If you and your spouse have been separated for a long period of time, are you automatically divorced or are there steps you need to take to legally end your marriage?
No automatic divorce in Canada
While it would be very convenient, there is no such thing as an “automatic divorce” in Canada. Spouses can be separated for a period of months or even years but they are still legally married to each other.
In other words, the simple passage of time will not get you a divorce. The only way to legally end your marriage in British Columbia is to apply to the Supreme Court for a divorce order. If neither you nor your spouse obtains a divorce order from the court, your period of separation will go on indefinitely and neither of you can lawfully remarry.
Streamlined divorce is possible in BC
Automatic divorce is not a possibility but there is a streamlined process for obtaining a BC divorce order known as filing for an “uncontested divorce.” An uncontested divorce can be granted when both spouses mutually agree on all major issues arising from the breakdown of their marriage. There is no need for spouses to appear in a court room to get an uncontested divorce. Conversely, when spouses can not agree on one or more critical issues, such as spousal support or parenting arrangements, they must used the “contested divorce” process. This process is more complex. It also takes more time, costs more and requires courtroom hearings or a trial where a judge decides the issues for the spouses.
Are you eligible for an uncontested divorce?
To be eligible for the more streamlined, less stressful uncontested divorce process, you must meet these criteria:
At least one spouse must have lived in BC for one year before initiating the divorce and one spouse must currently reside in BC;
You and your spouse have a court order or written agreement on all family law matters. For example, spousal support, child support, the division of property/debt, parenting time, and decision-making responsibility for your children. If you have not resolved all of these matters, an experienced British Columbia divorce lawyer can assist you in negotiating and preparing a separation agreement and/or guiding you through mediation to reach a settlement of any outstanding issues so you are then eligible for a quick uncontested divorce; and
You must be separated from your spouse for at least one year if the ground for divorce is living separate and apart one year.
You can file for a divorce immediately upon separation but the court will not grant the divorce order until a full year of living separate and apart has passed. There are exceptions in cases of cruelty or adultery. Talk to a family lawyer BCfor clarification on those other grounds for divorce.
How to file for an uncontested divorce
To apply for an uncontested divorce, you must file various documents with the court such as your government issued marriage certificate, a Notice of Family Claim form, and a Registration of Divorce Proceedings form. Our BC family law firmcan help you through this process.
You can file for a sole divorce or a joint divorce with your spouse. Service of the application is not required if you file jointly. If you file a sole application, you must have an adult third party serve all of the filed documents on your spouse. Your spouse has 30 days to respond. If your spouse does not file a response within that time frame, you must then proceed with filing additional documents.
Everything you filed is then given to a judge to review at their desk. This is why an uncontested divorce is also called a “desk order divorce”. The judge reviewing the divorce application ensures that family matters and child support has been adequately addressed, and then finalizes your divorce by signing off on the divorce order without you or your spouse having to appear in court or go to trial.
The entire uncontested divorce process typically takes around three to six months. It is possible to file an uncontested divorce without legal representation by gathering the necessary documents, filling out the forms, and filing them with the court. However, if you have not completed your paperwork properly or forget to file the right supporting documents, your divorce will be rejected. You will then have to amend your documents and resubmit them. This will increase the processing time to obtain your divorce order. For that reason, it is best to have assistance from an experienced British Columbia divorce lawyer so you understand your rights and obligations and the forms are initially completed properly.
Get trusted legal advice from a British Columbia divorce lawyer
Valerie M. Little Law Corporation is a BC family law firm that has helped thousands of individuals file for divorce. Valerie has many years of experience as a BC family lawyer and works with a qualified and compassionate team to ensure you get the best possible service.
Valerie M. Little Law Corporation is centrally located in New Westminster and serves all of Burnaby, Port Moody, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Squamish, Whistler, Richmond, Surrey, Cloverdale, Delta and Langley. To schedule your confidential appointment, call 604-526-3333 or email us today.