What is Uncontested Divorce in Surrey?

Divorce can be a scary word. It automatically brings up ideas of conflict, acrimony, and expensive legal fees for many. However, this is by no means a necessary part of a divorce.

Divorces are frequently a mutual decision between people who recognize a relationship has run its course and wish to begin a new chapter in their lives. This blog post will explain the concept of uncontested divorces and address some frequently asked questions in Surrey.

What is an uncontested divorce?

An uncontested divorce is one in which both people in the marriage agree to the divorce terms. Uncontested divorces tend to be the most convenient route for divorce to avoid the onerous legal fees that can sometimes occur in family law matters.

Uncontested divorces can proceed through two means:

1. Where the parties submit a joint divorce application.
2. One party solely submits an application for divorce, and the other party does not respond to the claim within the requisite time period.

When any term of the divorce application is disagreed with by a party in their application, it becomes what is known as a contested divorce. This is where the individuals may determine their issues before a court.

Can one spouse refuse to divorce?

A spouse may disagree with the terms of an application for divorce, which is referred to as a contested divorce. While a spouse can technically disagree with an application for the divorce, this does not act as a bar to the court granting a divorce. Divorce does not need to be consensual; it only takes one party to apply for divorce for that divorce to be subsequently granted.

However, there are other essential bars to divorce to be aware of. For example, one bar is that the court will not grant an application for divorce if the parties have children and there is not an established system of financial support for those children. The court will typically require an order for child support to be paid between the parties to satisfy this requirement.

How long does an uncontested divorce take in Surrey?

The average timeline for an uncontested divorce in Surrey is between four to six months. Many applications for divorce are rejected due to errors in formatting, missing information or not meeting the formal requirements of divorce. Consulting a family lawyer will ensure that avoidable mistakes do not unduly delay your application.

How do I file an uncontested divorce in Surrey? 

To prepare for your application, you may want to consider the following:

1. Have my spouse and I been separated for one year or more? Or will we be separated for one year or more when our application is finally filed? (You can resolve all the other matters except divorce before the one year, but unless one party is willing to swear an affidavit admitting to adultery, divorce almost always requires a one-year waiting period).
2. Do I have my marriage certificate?
3. Have my spouse or I been a resident of British Columbia for the past year or more?
4. Will one of us be changing our names?
5. Does Canada recognize our marriage?
6. Do my spouse, and I have a separation agreement?

Once you are ready to file your application, there are two possible routes:

1. Joint Uncontested Divorce

 To begin a joint uncontested divorce, you and your spouse will file a Notice of Joint Family Claim with the BC Supreme Court registry. You will also file registration of divorce proceedings with the government of Canada. When this is processed, you will be sent a clearance certificate to ensure the court that you have no other divorce proceedings pending in Canada. It can, on average, take six weeks to receive your clearance certificate, and it is thus suggested that you submit this court form early in your proceedings.

In addition to the above forms, you will also be required to file:

• a sworn desk order divorce affidavit;
• a sworn child support affidavit if there are children;
• a requisition for divorce;
• a certificate of pleadings;
• a draft final order; and
• any separation agreements or court orders if applicable.

2. Uncontested Divorce

To begin a standard uncontested divorce, you will start by filing a Notice of Family Claim requesting an order for divorce. You will have to arrange for someone other than yourself to serve this document to your spouse personally. They will then have 30 days to respond to that claim.

If they do not respond, the divorce can proceed as uncontested. If they do respond, your divorce becomes contested.

Once 30 days have passed, you can submit the remainder of the required forms to the BC Supreme Court registry, including:

• the clearance certificate, as described above;
• a sworn desk order divorce affidavit;
• a sworn child support affidavit if there are children;
• a requisition to search for a response to a family claim or counterclaim;
• a requisition for divorce;
• a certificate of pleadings;
• a draft final order; and
• any separation agreements or court orders if applicable.

Do I have to go to court?

An uncontested divorce is frequently referred to as a “Desk Order Divorce.” This is because it will proceed through the court by paperwork, without the couple ever appearing before the court. Very rarely, an individual may apply to the court for divorce in person if there is a severe issue of urgency. However, this is not standard practice.

How much will it cost?

The cost of an uncontested divorce will depend on where you are obtaining it. YLaw offers a flat rate for desk order divorces as follows:

• $2,000 for divorces where there are no children; and
• $2,500 where the parties have children.

For more information or to set up a consultation with our award-winning legal coaches in Surrey, call us at 604-974-9529 or send us an email.