When a marriage ends, emotions can run high. The thought of asking your spouse for a divorce or serving divorce papers may be intimidating.
Your spouse may refuse to accept that the relationship is over or may withhold consent believing it is a bargaining chip in the negotiations. Your spouse may also refuse to agree to divorce for religious or cultural reasons.
How can you get your spouse’s consent to a divorce if you are not in communication with one another, if your spouse has left the country, if your spouse is deliberately avoiding service of divorce papers or if your spouse is refusing to sign the divorce papers?
Is consent to divorce required?
No. You do not need the consent of your spouse to get a divorce in Canada. Divorce papers can be prepared and served on your spouse regardless of whether your spouse consents to the divorce and even if they object to a divorce for religious or cultural reasons.
This is because ”consent” of the spouses is not the legal test for divorce in the Divorce Act. Instead, the test for granting a divorce in Canada is whether there has been a “breakdown of a marriage.” You can prove to the court that your marriage has broken down in one of three ways:
You and your spouse have lived separate and apart for at least one year.
Your spouse has committed adultery.
Your spouse has treated you with physical or mental cruelty.
Once you have established one of these three grounds, you are eligible for a divorce without the need for consent from your spouse.
What if I do not know where my spouse is or they are evading service of the divorce document?
If you don’t know where your spouse is, it is still possible to obtain a divorce. The same is true if your spouse is repeatedly and deliberately avoiding the process server. The purpose of divorce papers is to formally notify your spouse of your court action seeking a divorce. You are required to do everything possible to attempt to locate and have your spouse served with divorce papers. Service is typically carried out by hiring a process server to physically hand the divorce papers to your spouse.
But if you can not locate your spouse or they are avoiding being served, you can apply to the court for an order for alternative or substitutional service so they are served by another means other than personally. It will be necessary to prepare an affidavit for the court to explain the efforts you made to try to find and/or try to serve your spouse. An experienced divorce lawyer can assist you with this process so your divorce can be granted.
What if my spouse does not respond after being served with divorce papers?
You can proceed to ask the Judge for a divorce even if your spouse has not responded to the Notice of Family Claim. This would be known as an "uncontested divorce" or ”undefended divorce.” Here is how it works. There is a set time limit of 30 days to respond to your application for a divorce. If the time limit expires and no response is filed, you can ask the court to grant a divorce order on the basis that your spouse had the opportunity to oppose the divorce but did not. The court can grant the divorce on the assumption that your spouse agrees with the divorce or does not object to one being granted.
What if my spouse and I disagree on other issues?
If vour spouse disputes your eligibility for a divorce or if you cannot agree on issues such as parenting, child support, spousal support, and division of property or debt, the process for obtaining a divorce will be more complicated. Where a divorce is “contested” it will be necessary to go through the Supreme court process. Court hearings, including a trial, may be necessary, but it is also very common for spouses to reach a negotiated settlement before trial. Once you and your spouse agree on the terms of your divorce, you can obtain a divorce order with consented to corollary relief.
Can a couple use the same divorce lawyer?
If you and your spouse disagree on some or all of the issues arising from the end of your marriage, it is not possible for one lawyer to represent both of your interests. Your conflicting positions create a conflict of interest that makes it impossible for one lawyer to give legal advice and protect each of your rights. Even if you are in an agreement on getting a divorce, it is usual for one party to retain a lawyer to prepare the proper court documents and to forward the Court Order to the other spouse to take to a lawyer of their own choice for advice should they wish to obtain such advice. The one lawyer will then prepare all the necessary court documents and submit them to the court on your behalf.
Who can help me with my divorce?
Separated spouses in the Lower Mainland have relied on Valerie M. Little Law Corporation for over 30 years to help them get divorced and to resolve other family law matters on their behalf.