Desk order divorce: The do-it-yourself divorce process
If you and your spouse agree on the issues of parenting, support and property, there’s a fast-track way to get a divorce. Learn how you can apply for a desk order divorce.
“When Jay and I decided to separate, we both wanted to avoid a drawn out, expensive divorce. Thankfully, we were able to talk through the key issues, and I was game to take the lead on doing the paperwork. That made it feasible to get a desk order divorce. It cost us around $500, and we didn’t have to go in front of a judge.”
– Roya, Terrace, BC
What you should know
To be divorced, you need to get a divorce order under the Divorce Act. In BC, only the Supreme Court can grant this order. So, to get one, you have to apply to that court. This is true even if you and your spouse agree on all your other family law issues and only need a divorce order.
To get a divorce, you must prove your marriage has broken down. You can show marriage breakdown in three ways: having been separated for at least one year, adultery, or cruelty. We explain these in our information on requirements for divorce.
A desk order divorce is a process that lets you get a divorce order without having to appear in front of a judge. It’s also called an undefended or uncontested divorce. You can apply for a desk order divorce once you and your spouse have resolved any other family law issues.
Either one spouse, or both together, can apply for a desk order divorce in BC Supreme Court. The process involves preparing and filing several court forms. When one spouse starts the court case, the process is called a sole application for an uncontested divorce. When the spouses start the court case together, it’s called a joint application for an uncontested divorce. If you’re not sure which procedure to use, it’s a good idea to get legal advice.
You can file on your own
Here’s how a sole divorce proceeding typically works. One spouse — let’s say it’s you — starts a BC Supreme Court case by filling out, filing, and serving a court form asking for a divorce. Your spouse agrees and doesn’t file a response in court. After the deadline for filing a response has passed, you can make an application for a divorce order. This involves completing additional court forms and filing them in court. A judge will review the application and make a decision, usually without either of you having to appear before a judge.
You can file jointly
Another option is that both of you can start the court case together by filling out and filing certain court forms in BC Supreme Court. The joint application is less expensive and faster than if only one spouse starts the court case. This is because there’s no need to serve anyone with the court forms and no need to wait for the response deadline.
You give evidence without going to court
In a desk order divorce, the material you file in court will include affidavits. These will give the court the evidence it needs to make a divorce order. An affidavit is a legal document in which a witness makes statements sworn to be true.
Unless the court decides that further evidence or a full hearing is required, it will usually make the divorce order. No one needs to attend a court hearing.
The court needs evidence that reasonable arrangements have been made for the financial support of the children. This is true even if the spouse who has the children most of the time is happy with the support arrangements. The court has a special duty to make sure the children are taken care of. It needs proof of your income and your spouse’s income. It needs to know the children’s living arrangements, and the amount of child support being paid (or an explanation why it isn’t being paid). Without this information, the court won’t make an order for divorce.
You aren’t actually divorced the moment the divorce order is made. The divorce won’t take effect until 31 days after the court grants a divorce order. (That’s if there are no special circumstances and no one has filed an appeal.) So, don’t plan on remarrying within that 31-day period.
Once the 31 days have passed, you’ll be divorced. If you choose to, you can ask the court to issue a certificate of divorce confirming this. But you’ll be divorced whether you get the certificate or not.
If both of you agree to the divorce order, and to any other orders you want the court to make, you can start the divorce proceeding together by filing a joint uncontested divorce proceeding.
With this action, neither spouse has to serve court documents on the other. So you may be able to apply for the divorce order on the same day you file your joint claim. (That’s so long as the one-year period of separation has passed.)
Both you and your spouse must sign the notice of joint family claim (form F1). Both of you must also complete affidavits. These give the court the information it needs to decide if the divorce order is justified. If you have children, one affidavit you’ll both need to prepare and file deals with the child support arrangements you have in place.
The steps in the desk order divorce process
These steps describe the process for a sole application for an uncontested divorce.
You need your original, government-issued marriage certificate to apply for a divorce. If you don’t have an original, you have to get a new one.
If you were married in BC, you can get an original marriage certificate for $27 from the Vital Statistics Agency. You can call the agency at 250-952-2681 in the Victoria area, or toll-free 1-888-876-1633 elsewhere in BC.
If you were married outside of BC, you’ll need to contact the equivalent government agency to get an original marriage certificate or a certified true copy. It’s not the certificate from the person who performed the marriage that’s needed, but the government-issued record of your marriage.
If you have a foreign marriage certificate that isn’t in English, you’ll also have to file a certified English translation of the foreign marriage certificate.
If you were married outside of Canada and can’t get an original, government-issued marriage certificate, you can’t get a divorce by desk order. Instead, you may need to apply to court to bypass filing a marriage certificate. In your material, you’ll need to explain why you can’t get the certificate. If possible, get legal advice if you find yourself in this situation.
A form called the notice of family claim (form F3) starts a divorce proceeding in Supreme Court. This form states the basis for the divorce (such as being separated for at least a year). It also gives information about you, your spouse, and any children, as well as the details of your marriage and separation. If you file the notice, you are the claimant. Your spouse is called the respondent.
The notice form also allows you to ask for other orders besides a divorce order. Other orders might involve the parenting arrangements for your children, child support, spousal support, or the division of property and debt.
Along with the notice form, you also need to complete and file a registration of divorce proceedings form. This form helps the court check on whether there are other divorce proceedings in your or your spouse’s name that have been started in Canada.
Once you’ve filled out and signed the notice form, you must file it in court, along with your marriage certificate. You’ll need to pay a $210 filing fee. You have to file the original notice form together with at least three photocopies. The court keeps the original and gives you the copies, stamped with the court’s official stamp.
Anyone who’s being sued must be given formal notice of the court case; this applies even to a sole application for an uncontested divorce proceeding. Your spouse must be served by personal service. That means arranging for the court-filed notice of family claim to be physically delivered to them. You can’t serve the document yourself. You must have someone else, who’s at least 19 years old, leave the filed notice form with your spouse.
You must prove personal service
The person who serves the court documents must swear an affidavit of service (form F15). In it, they’ll describe how, when, and with what your spouse was served.
If personal service is not possible
If your spouse can’t be personally served — for example, because you don’t know where they live — there are other ways to let them know about the court action. This is called substitutional service or alternative service. You must have a court order to use this type of service.
The court may, for example, allow notice to be served through a classified ad in a local newspaper. Or it may order that the notice be given to someone your spouse knows, such as their parents, a co-worker, or a roommate.
If your spouse doesn’t agree with the claims you’re making, they have 30 days to defend the court case by filing a response (form F4). If they do file a response, you can’t get a desk order divorce, as your divorce is now considered contested.
Your spouse may choose to respond to your claim and also file a counterclaim (form F5). In the counterclaim, your spouse can make their own family law claims against you.
If the 30 days have passed and your spouse hasn’t filed a response, you can apply for a divorce order. The filing fee is $80. You must prepare and file the following forms in court:
A requisition in form F35, which asks for a divorce order.
The affidavit of service in form F15, which says your spouse was personally served with the notice of family claim (the form that started the court case). An affidavit is a legal document in which a witness makes statements they swear are true.
Your affidavit in form F38, which gives the court your evidence in support of a divorce order.
A certificate of pleadings, which tells the judge that the documents filed in your case are correct and complete.
A draft of the final divorce order in form F52.
If you have children, you’ll also have to file a child support affidavit (form F37). This affidavit gives the court more information about your income and your spouse’s income, your children’s living arrangements, and the child support amount being paid.
Who can help
Legal Aid BC’s Family Law in BC website has free step-by-step guides for applying for a desk order divorce.
The BC government has a free step-by-step online tool, the Online Divorce Assistant, to help couples with or without children apply for a desk order divorce together.
The wikibook JP Boyd on Family Law gives a step-by-step explanation of how to get divorced by desk order in BC. It also includes completed sample forms.
The Family LawLINE, operated by Legal Aid BC, is staffed with lawyers who provide free family law legal advice over the telephone to people who can’t afford a lawyer.
Call 604-408-2172 (Metro Vancouver) or 1-866-577-2525 (toll-free)
Also see our information on free and low-cost legal help. It explains options such as pro bono services, legal clinics, and advocates.
This information from People’s Law School explains in a general way the law that applies in British Columbia, Canada. The information is not intended as legal advice. See our disclaimer.
Related
On Dial-A-Law
Dial-A-Law has more information on Divorce & separation in the section on Families + Children.