Divorcing? Know Your Rights, Understand Your Options

May 31 2018

At RDM, we know life doesn’t always work out the way we planned. When your marriage breaks down, it’s important to take the right steps to ensure that you and your children are taken care of. If you or your spouse is considering ending your marriage, you need to know your rights and understand your options.

Undefended and Defended Divorce Proceedings

In British Columbia, a divorce can proceed as either undefended or defended. In an undefended (or uncontested) divorce, both parties have come to agreement on all issues, including the division of property, parenting arrangements and child support, and are merely seeking a divorce order. In a defended (or contested) divorce, the parties have not able to reach an agreement on the issues and, if it gets that far, a judge will decide them at a trial.

In either case, an application to the Supreme Court by way of a Notice of Family Claim is made for a divorce order. Because the process can be complex and time consuming, especially in a defended divorce, you should consider contacting a family lawyer to help you with the process.

Requirements for Divorce

At least one spouse must have lived in BC for 12 months prior to filing for divorce. You must also be able to establish that you meet one of the three grounds of divorce. The most common ground for divorce is separation. The other two less-common, fault-based grounds for divorce are adultery and mental/physical cruelty.

Separation is the most common ground for divorce because it’s the easiest to prove. It doesn’t need to be consensual – it only takes one spouse to say that they are going to separate. You can make the application for divorce soon after the separation and before the expiry of the one year period.

Adultery and Cruelty are the fault-based grounds for divorce. The spouse claiming either of these grounds must prove the breakdown is the fault of the other party, rather than his or her own fault.

The benefit of pursuing fault-based grounds is that you are granted an immediate divorce without waiting the one year period of separation. Generally by the time the time that is proven, however, the one year period has already passed and so most people usually proceed on the basis of separation.

The court will need to be satisfied that reasonable arrangements have been put in place for the care of any children of the marriage before a divorce order will be granted.

Steps To Divorcing

You will need to assemble a number of documents. These include a marriage certificate, a picture of your spouse for the process server, and (if applicable) a separation agreement or court order.

The forms needed to apply for a divorce will vary based on your circumstances. You may need to complete more than a dozen forms depending on the issues and complexity of your case. All divorce proceedings are started by filing a Notice of Family Claim.

How Long Does It Take?

The length of time for a divorce can vary greatly and depends on your circumstances. Provided you have been separated for at least a year, it could take as little as two to three months in an undefended case. A defended divorce could take several months or longer, depending on how many interim orders are filed in your case.

Unless the judge orders differently, a divorce orders will take effect on the 31st day after the judge signs the order. If you are planning to marry again, you must wait until the 31 days have passed. And if your spouse files any last-minute appeals, the divorce stops until the appeals are heard.

If a divorce is pending and you’re concerned about the outcome, contact RDM Lawyers. One of our experienced family law professionals can explain your options and help you navigate what can often be an emotional and complex process.