The only way to legally end your marriage in BC is by applying to the Supreme Court and obtaining a divorce order from a judge of the Supreme Court.
- When will divorce be granted?
- When can I apply for divorce?
- Do I have to proceed in court to get divorced?
- Is there such thing as a ‘friendly’ or ‘joint’ divorce?
- How to apply for sole/unilateral divorce?
- How long will it take to obtain an order for divorce?
- What documents to I need to gather to proceed with divorce?
When will divorce be granted?
The Supreme Court will grant divorce when the following requirements and conditions have been met:
- You and your spouse must have resided in BC for at least one year;
- You and your spouse can demonstrate that your marriage or common-law relationship has broken down; and
- The court is satisfied that you and your spouse have made reasonable arrangements for any children and satisfied all other family law claims either by way of entering into an agreement or obtaining a court order.
When can I apply for divorce?
Any time after you and your spouse separate, either one of you may apply to the court for a divorce.
You will have to be able to prove to the court that:
- You and your spouse have been separated and lived apart for at least one year, or
- One of you committed adultery, or
- One of you was physically and/or mentally cruel to the other.
It is important to keep in mind that you are at liberty to initiate divorce proceedings any time after separation but that an order for divorce is granted by the court after you and your spouse have separated for at least one year.
You and your spouse may continue to live under the same roof while separated. Many couples face financial issues which makes it very difficult or impossible for one of parties to move out of the family home. In such circumstances, the spouses may separate their beds/bedrooms and continue to live in the same house but be considered separated. It is essential that both parties have a mutual understanding and meeting of minds establishing that they are separated as the relationship or marriage has broken down.
It is vital to keep in mind that an order for divorce will only be granted once all other potential family law claims, namely claims for parenting arrangements, child support, spousal support and division of family property (assets & debts) have been addressed and satisfied. If any of the mentioned family law claims remain outstanding an order for divorce will not be granted by a Supreme Court judge. Either by way of a court order, or an executed agreement you must demonstrate to the court that you and your spouse have successfully addressed and satisfied all other claims.
Do I have to proceed in court to get divorced?
You do not have to proceed with a court hearing in order to obtain an order for divorce from a Supreme Court judge. There is an option for obtaining a “desk order divorce” which is finalized by submitting a package of legal pleadings to the Supreme Court family registry. The registry staff will review the pleadings for procedural correctness and will present the package submitted to a judge for signing the final order for divorce.
A desk order divorce is usually granted within 2 months of submission of a complete package to the family registry. Once a final order for divorce is signed by a judge, you may pickup the signed final order from the family registry and ask to obtain a divorce certificate.
A precondition to proceeding by way of a desk order divorce is for you and your spouse to have obtained court orders or entered into a separation agreement which addresses and satisfies any and all potential family law claims possibly applicable to your family law matter.
A submitted package of pleadings may be rejected by the family registry if it is not drafted adequately and pursuant to the Family Law Act and the Supreme Court Family Rules.
Supreme Court forms can be difficult to comprehend and can appear intimidating due to use of legal terminology. To ensure the required forms are completed properly and to save you from delay of rejected pleadings, we recommend connecting with our family law lawyer to make sure you the pleadings you intend to file, are completed adequately.
Is there such thing as a ‘friendly’ or ‘joint’ divorce?
Couples who agree that there is no chance of reconciliation and have agreed on all other potential family law claims (namely: parenting arrangements, child support, spousal support and division of assets and debts) can apply jointly for their divorce. Filing jointly eliminates the need to serve the other party and allows the couple to apply for an uncontested or undefended divorce together.
Uncontested divorces are becoming more common and preferable as more couples realize the financial, mental and emotional benefits of an amicable split.
A divorce may still proceed as uncontested or undefended in a unilateral or sole application by one spouse if the other spouse does not respond when served with the application.
- Steps Required to File for a Joint Divorce
- Review applicable legislation: review the Divorce Act, The Family Law Act and the Supreme Court Family Rules to see which rules and steps apply to your circumstances and case.
- Decide where to file: a divorce for claim must be filed in the province where you have resided for at least one year.
- Prepare the documents/pleadings: obtain your original marriage certificate. Print a Registration of Marriage Form and date it for the day you are going to file your divorce pleadings. Complete a F1 Notice of Joint Family Claim.
- Commence your divorce claim: Attend a Supreme Court family registry with three copies of your Notice of Application, your marriage certificate, your Registration of Divorce Proceeding from and a cheque payable to the Minister of Finance to file for the first step in the divorce process. You may also pay for the filing fee at the family registry with a credit card or a debit card. The court will then file your primary pleading and assign you a file number and place a seal on the Application.
- Serve the documents/pleadings: There is no need to serve the filed application on your spouse because you and your spouse have jointly filed and jointly sifned the Joint Notice of Application.
- File the pleadings/documents: Once you have met the grounds for divorce such as being separated for one year you can proceed with filing the final set of pleadings/documents at the family registry of the same Supreme Court location which include a Joint Affidavit for Desk Order Divorce, Requisition and Final Order for Divorce.
- Receive your Divorce Order: If the court clerk and the judge are satisfied with your pleadings and wording of your Final Order, the judge will grant the divorce by signing the Final Order for Divorce. Divorce will take effect on the 31st day after it was granted.
The registry staff will advise you to allow 4-6 months for processing time from final filing of pleadings to when Order for divorce is granted. However, depending on the number of pending pleadings at a certain court location this time period may be shortened and your divorce may be processed within 2 months.
How to apply for sole/unilateral divorce?
The following steps set out how to apply for a divorce order on your own in BC:
- Resolve all your marital claims and issues namely parenting arrangements, child support, spousal support and division of family property.
- Commence a family law action: complete and file a Notice of Family Claim at the BC Supreme Court.
- File and Serve: obtain a copy of the filed Notice of Family Claim from the Supreme Court registry and serve this filed pleading on your spouse. Please note that personal service is required, and you cannot be the individual who serves your spouse.
- If your spouse does not respond to the Notice of Family Claim within 30 days of being served by filing a Response to Family Claim, you can start the desk order divorce process which does not require appearance at a court hearing before a judge.
If your spouse agrees with your divorce claim you may coordinate with your spouse in advance for them to not file a Response, so that one of you can proceed with obtaining the order for divorce.
If your spouse does not agree with your divorce claim because they still wish to pursue a claim for child support, spousal support, family property or custody of children, then you and your spouse need to proceed with a Judicial Case Conference in hopes of first resolving any outstanding claims. Once all other claims have been settled, and you and your spouse both agree to the divorce claim, you may proceed with filing the Final Order for divorce.
How long will it take to obtain an order for divorce?
After a year of separation and once all family law issues and claims have been settled, it is possible to obtain an order for divorce from the Supreme Court in 2-4 months. This period might take longer if the Supreme Court Registry is busy with processing other pending orders.
What documents to I need to gather to proceed with divorce?
- Your marriage certificate
- Money to pay a translator to translate your marriage certificate into English, if required
- A copy of your separation agreement or court order(s) respecting any potential family law claims and issues
- A recent photo of the other person, if required for service
- Your change of name certificate, if required
To have one of our experienced divorce lawyers handle your separation, contact us to set up an appointment.