The only way to legally end your marriage is by getting a divorce order. Only a judge in the BC Supreme Court can grant you a divorce. So, you may be wondering: what is the fastest way to get a divorce in BC? An uncontested divorce—also known as an undefended divorce, simple divorce, or “desk order divorce”—is the fastest way. You can get a desk order divorce from a judge without setting foot in a courtroom.
You must meet certain requirements to be eligible to use the uncontested divorce process, which we will discuss below. If you are eligible, you must pay careful attention and avoid mistakes when submitting your uncontested divorce application for the judge to review. Using the wrong forms, forgetting to submit all the necessary evidence, or failing to follow the proper court process will result in your application being rejected.
It is possible to prepare your own desk order divorce application, but rejected applications will cost you time, money, and stress. For that reason, it is strongly recommended that you hire a divorce lawyer to prepare, serve, and submit the application on your behalf.
First, let’s talk about legal grounds for divorce. When you bring a divorce application, you must identify the grounds for divorce—essentially, the reason your marriage has broken down. In Canada, there are only three grounds for establishing marriage breakdown: living separate and apart from your spouse for at least a year, adultery, and mental or physical cruelty.
Living separate and apart from your spouse for at least one year (also known as “no-fault” divorce) is the most common ground for divorce. This is because the “fault based” grounds of adultery and cruelty must be proven by evidence in court. You can’t apply for an uncontested divorce if you are relying on adultery or cruelty as the grounds for your divorce; instead, you must use the contested divorce process. Depending on your situation, it may be easier and quicker to rely on one year of living separate and apart as the grounds for your divorce, even if your spouse committed adultery or was abusive.
There are certain requirements you must meet to be eligible for a desk order divorce. First and foremost, you must resolve all issues arising from your marriage and its breakdown before you can get a desk order divorce. That includes spousal support, child support, parenting arrangements, and division of family property and debt. Many separating spouses resolve marital issues by negotiating a written separation agreement. Once you have a separation agreement in place, the only outstanding issue is getting a divorce order to dissolve your marriage.
A divorce lawyer can help you negotiate a fair, legally enforceable separation agreement. If negotiation is not successful, a divorce lawyer can guide you through mediation or bring a court case to resolve family law issues. One option is to bring a family claim in BC Provincial Court, which is typically quicker and less expensive than family claims in Supreme Court. Once you have a provincial court order dealing with family law issues, you can apply in Supreme Court for an uncontested divorce order.
The second requirement relates to residency. A BC Supreme Court judge will not sign off on your divorce order unless you or your spouse has lived in BC for at least one year when you file your application. This is necessary to give the BC Supreme Court jurisdiction to make the divorce order.
Lastly, if you have children, you must provide evidence to satisfy the judge that you have made reasonable arrangements for your children, including child support. The judge will refuse to grant a desk order divorce if he or she is not satisfied with the arrangements for dependent children.
The uncontested divorce process is the fastest and simplest way to get a divorce. A BC Supreme Court judge will review your application “at their desk” (without the need for a court hearing) and issue a desk order divorce—assuming that everything in your application is 100% complete and procedurally correct.
A contested divorce, which is also called a “defended divorce” will take longer and be more expensive. Depending on the issues at stake, it can take six to 18 months, if not longer, to resolve fault-based grounds for divorce and family law issues pertaining to property, debt, support and children using the contested divorce process.
As discussed in the section above on grounds for divorce, you must demonstrate that your marriage has broken down due to living separate and apart from your spouse for at least one year. That being said, you can start your application for an uncontested divorce any time after separation; the judge will not grant the divorce until you and your spouse have been separated for at least a year.
There are two main stages to the uncontested divorce process. The first stage involves filing a notice of family claim with the BC Supreme Court registry. You need to file a certificate of marriage along with the notice of family claim. If you can’t get an original or certified true copy of your marriage certificate, you will need to draft and file affidavits to be sworn by witnesses to your marriage ceremony. You also need to file your separation agreement and a related court form (Requisition Form F17.1), along with all the related court filing fees.
The court registry staff will review your documents to ensure they are complete. If they are, the registry will file and stamp the documents with the court’s seal. The filed notice of family claim and supporting documents must then be served on your ex spouse. Typically, a process server is used to serve the documents on your former spouse. The person who completes personal service must then prepare an affidavit of personal service.
The second stage can’t begin until 30 days after the notice of family claim has been served. The 30-day window is to allow your spouse time to file a response to your claim. In many cases, the spouse who is served is aware the documents were coming, and they do not take steps to defend (in fact, it is possible to file for joint divorce, which eliminates the need for personal service). If your spouse does file a response in the 30-day window, you can’t proceed to the second stage of the uncontested divorce process.
The second stage involves filing a number of court forms and related court filing fees, including:
You will need appear before a lawyer or notary to swear the affidavits. There are strict rules for when you can swear or affirm the Affidavit — Desk Order Divorce (Form F38). You can only swear that affidavit after you have been separated for one year, your Notice of Family Claim has been filed with the court, and the 30-day window for your spouse to file a response to family claim has passed.
Where do you get a divorce proceedings form when you need it? The BC Supreme Court has a repository of forms on its website. If you hire a divorce lawyer to assist you, your lawyer will provide and prepare all of the necessary divorce forms and affidavits for you.
An uncontested divorce application typically takes about four or five months from the date of filing to the date the divorce order is issued by the judge. Bear in mind, however, that mistakes will drag out the timeline. The court registry will keep rejecting your application it until it’s 100% correct. If the registry is busy, this can add months to the process each time you have to resubmit your application. To avoid delay, it is so important to complete the forms accurately and completely the first time around.
Once your divorce order has been issued by the judge, it takes effect 31 days later. In other words, your divorce will automatically be final 31 days after the judge grants the order if no appeal is filed in those 31 days. If you plan to remarry, you must wait until the 31-day period has passed.
Court fees are the same whether you prepare the documents on your own or have a divorce lawyer assist you. At the time of writing, court filing fees are $210 to file the documents at the first stage, and $80 to file your final application at the second stage. Court fees are subject to change. You should expect other fees, such as the fee to obtain your certificate of marriage, and the process server’s fees.
If you prepare your divorce application on your own, you will also have to pay a fee for each affidavit sworn. For example, the BC Supreme Court registry changes $40 for each affidavit. If you hire a divorce lawyer, your lawyer will commission necessary affidavits as part of their fee.
Choosing to hire a lawyer will save you time and stress. Your divorce lawyer will guide you through the process and ensure your uncontested divorce application is done properly. Legal fees will vary based on the complexity of your case and whether or not you have children. On average, legal fees for a desk order divorce with no children can range from $1,300 to $2,000, while legal fees for a desk order divorce with children can range from $1,800 to $2,500.
Some divorce lawyers offer a flat rate for uncontested divorce applications. The best way to budget is to contact a divorce lawyer, who can provide you an estimate of the total cost of an uncontested divorce (legal fees, court filing fees, other disbursements, and taxes).
The uncontested divorce process is the fastest and least expensive way to get a divorce, but it is only open to spouses who have resolved all family law issues between them. Whether you are in the process of separating, in the midst of a difficult dispute with your ex, or ready to start the divorce filing process, Onyx Law Group is here to help. Our experienced Vancouver divorce lawyers can help you navigate the legal system and achieve a fair result for you and your family. Reach out to Onyx Law Group today at (604) 305-2923 to get trusted advice and a clear plan for securing your divorce order.
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