What is an “Uncontested Divorce”, Exactly?
The term “uncontested divorce” is one that is often bandied about quite casually, but is one that likely isn’t well-understood by most people.
In Canada the law sets out that you can only obtain a divorce if certain criteria are met – namely that the marriage between a couple has broken down. By law, this is deemed to occur if:
• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or
• your spouse has committed adultery and you have not forgiven your spouse; or
• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. (Cruelty may include acts of physical violence and those causing severe mental anguish).
However, in cases where you and your spouse are “on the same page” and do not dispute the need for a divorce from each other, then there is a relatively straightforward procedure in place for obtaining one (at least in comparison to situation where the divorce is contested).
You must simply file an Application for Divorce with the court that is located in the municipality where either you or your spouse have lived for at least one year (or where your children reside if you are seeking to have custody or access settled as well).
You must file, serve and register this Application in accordance with certain rules, together with a filing fee and a copy of the marriage certificate or marriage registration certificate (if available. If the certificate is not available or is impractical to obtain, then you must include the reason, in an affidavit that is filed alongside the other materials).
Any arrangements in connection with child support must be properly described, and they must conform to the Child Support Guidelines. Any prior court orders or domestic contracts that you or your spouse have obtained previously, relating to support (etc) must also be filed.
Finally, you and your spouse will also include a draft Divorce Order; this will have to include certain other documents in situations where child or spousal support is also being settled as part of the uncontested divorce.
Once all the documentation is in order, the court will issue a Divorce Order and send a copy to you and your spouse. The Divorce Order officially takes effect on the 31st day after the date it was granted by the court.
Seems easy, right? The process is certainly more streamlined than a contested divorce, but it still involves a lot of detail; feel free to give our office a call and we can help.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.