Desk Order Divorces and Family Law Agreements
Desk Order Divorce
A desk order divorce is an uncontested divorce proceeding that enables spouses to obtain a divorce without a court hearing. There are two ways to obtain a desk order divorce - through the sole application process and the joint application process. I will be listing the steps in the sole process since it is the process most commonly used.
A B.C resident must apply to the Supreme Court of British Columbia under the Divorce Act to obtain a divorce. The court will grant a divorce if you and your spouse have lived separately for one year (most common ground), you or your spouse had lived in B.C. for the previous year, and you have made reasonable arrangements for the child(ren), if any.
If there are children of the marriage, child support must be paid in accordance with the Federal Child Support Guidelines unless there are special provisions in an order or agreement that benefits the child(ren).
A sole desk order divorce is generally available where a divorce proceeding is uncontested or undefended from the start, and where a contested matter becomes an uncontested proceeding by the withdrawal of a defence or the discontinuance of a claim.
Generally, a desk order divorce will be available where a divorce proceeding is undefended or uncontested from the outset, and where a contested matter becomes an uncontested proceeding by the withdrawal of a defence or the discontinuance of a claim.
Here are the main steps in a sole desk order divorce process:
1. Obtain your marriage certificate or registration of marriage. If you do not have it, you can obtain it from the B.C. Vital Statistics Agency.
2. File at a B.C. Supreme Court registry the original and 3 copies of the Notice of Family Claim. You will need to include your original marriage certificate or a certified copy of your registration of marriage, a registration of divorce proceeding form (available at the court registry), and the filing fee (currently $210).
3. Arrange to have a process server or someone other than yourself serve your ex-spouse with the Notice of Family Claim. The process server will need 2 copies of the Notice of Family Claim and a photograph of your ex-spouse. The process server will serve one copy on your ex-spouse and attach the other copy and the photograph to his or her Affidavit of Personal Service to prove your ex-spouse was served. If your ex-spouse cannot be located, you will have to apply for an order for substituted service.
4. Finalize the process server’s Affidavit of Personal Service and ensure that it has been sworn or affirmed before a lawyer or notary public.
5. Wait at least 31 days from the date of service on your ex-spouse before preparing the divorce order application forms. If your ex-spouse files a Response to Family Claim, your matter becomes contested and you will have to settle or litigate your family law issues.
6. Prepare the divorce order application forms, which generally consist of the following:
- Affidavit in support of the application (must be sworn/affirmed before a lawyer or notary public within 30 days of the date the application for the divorce is filed)
- Certificate of the Registrar
- Draft of the order(s) sought
- Requisition for the order sought
- Proof of service – Affidavit of Personal Service or Affidavit of Substituted Service
- Child Support Affidavit (if applicable) setting out the parties incomes and child support arrangements (must be sworn/affirmed before a lawyer or notary public within 30 days of the date the application for the divorce is filed)
7. File the divorce application forms and pay the court fee (currently $80) at the court registry where you filed your Notice of Family Claim.
8. After 5 weeks, check with the court registry to see if the divorce order is ready for pick up. Once you have received it, mail a copy to your ex-spouse. It can take from 4 to 16 weeks to process the order depending on the court registry.
9. You are officially divorced once you have received the entered divorce order and 31 days have passed.
10. If you would like to obtain a Certificate of Divorce (required if you wish to remarry), you will have to wait 32 days from the date the divorce order was made before filing a draft Certificate of Divorce and Requisition. You will have to pay a court fee (currently $40). You can wait at the court registry while your Certificate of Divorce is completed.
Marriage and Cohabitation Agreements
Family law agreements have become an important tool in resolving family law disputes outside of court. With the coming into force of the B.C. Family Law Act in March 2013, the B.C. courts have been giving greater deference to family law agreements.
Marriage and cohabitation agreements, also known as prenuptial agreements, are generally prepared when spouses and common law partners wish to take themselves out of the rules set out in the B.C. Family Law Act. The rules set out in the Family Law Act dictate an equal division of all real and personal property other than “excluded property”. A couple may want to opt-out of this regime in situations where one party is bringing significant assets into the relationship, one or both parties have children from a previous relation, one party owns a business, or each party wants to remain financially independent.
There are many reasons why couples enter into marriage and cohabitation agreements. One or both parties may want to protect assets acquired before the relationship began or preserve certain assets with sentimental value from being shared with the other party. Other parties may want separate and joint assets during the relationship. Couples may also want to address spousal support issues through an agreement in cases where both parties are well-established in their careers. They may also wish to set out how each would contribute to the shared expenses and assets in situations where they choose to maintain separate financial affairs during their relationship.
Court will generally uphold agreements between parties and not set them aside provided that certain steps have been taken before and during the preparation of the agreement. First, the parties must make full disclosure of their financial situation and assets. Second, both parties must be free from duress or pressure to sign the agreement. Third, the provisions in the agreement must not be significantly unfair to either party. The final consideration is each party must have their own lawyer who can provide them with legal advice independent from each other.
Having an agreement in place at the beginning of a relationship can help reduce the expense, uncertainty, and stress involved with any family law problems that may occur in the future.