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The Different Types of Divorce in Canada

Divorce document torn up and wedding rings apart

There are two main types of divorce in British Columbia: contested and uncontested. Here is a brief summary of each along with some related information.

A. Contested Divorce

Family lawyer litigation divorce in courtroom

A divorce is considered to be contested when the spouses are not in agreement concerning their desire to divorce. Disagreements may come in a number of different ways. For example, one spouse may not want a divorce. If both spouses desire a divorce, the disagreement may be about the terms of the divorce. Typically, couples disagree on such things as child custody, child support and the division of property and debts.

1. Grounds for a Contested Divorce

In BC, it is not necessary for both spouses to agree in order for a divorce to be obtained. However, the spouse desiring the divorce has the burden of proving that there are sufficient grounds for the divorce to be granted. Generally speaking, this means that the spouse wanting the divorce must be able to prove that the marriage has broken down, and that there is no hope of saving it. There are three acceptable grounds for this proof: adultery, abuse and separation.

a. Separate and Apart for 1 Year

When the spouses live separate lives for one full year or more, the separation is sufficient grounds for a divorce. This is one of the easiest-to-prove grounds for divorce and is therefore the one most often used. The reason for the separation is not important. All that really matters is that the spouses have lived apart for 12 months. During that time, the spouses must have lived independently.

b. Adultery

Adultery occurs when a spouse has an extramarital affair not condoned by the other spouse. In order for adultery to be used as grounds for a divorce, the evidence must be sufficient to convince a judge that it actually occurred. Suspicion of adultery without evidence is insufficient. Because of this, adultery is one of the hardest claims to prove. The most straightforward way to prove the claim is for the spouse who allegedly committed the act to admit it. However, if that spouse denies the claim, then evidence must be supplied to substantiate the claim.

c. Abuse or Cruelty

The act of one spouse physically or mentally abusing the other spouse or subjecting the other spouse to physical or mental cruelty is considered to be grounds for divorce. Types of abuse include sexual, physical, psychological, verbal, emotional and financial. As with adultery, claims of abuse may have to be proved.

2. Settlement Options

When a marriage is contested, there are three basic ways that the differences can be resolved: mediation, arbitration and litigation. Here is a brief discussion of each:

1. Mediation

Rather than going to court, contentious divorce issues may be resolved through a mediation process. Unlike a court proceeding, mediation is an informal process where a licensed mediator works with both spouses to help them resolve the issues that are the cause for the divorce being contested. In addition to being less stressful, mediation is usually much less expensive than going to court. One advantage of mediation is that both spouses have an opportunity to learn during the process, which can help them make better joint decisions, such as those that will have an impact on their children. When mediation leads to a successful resolution of the issues, the spouses enter into a written agreement that spells out the terms of the divorce. Although mediation avoids a court battle, each spouse still has the right to seek the advice of a divorce lawyer.

2. Arbitration

Arbitration involves a neutral third party who weighs the evidence presented by the spouses and makes decisions regarding the dissolution of the marriage. Unlike mediation, where the spouses are encouraged to find common grounds, an arbitrator is more like a judge who imposes a resolution that the spouses will be bound by.

3. Litigation

When spouses are unable to settle on the details of a divorce, it may be necessary to litigate the case in court. In British Columbia, the court system is comprised of two layers: the Provincial Court of British Columbia and the Supreme Court of British Columbia. The main difference is that the Supreme Court has the authority to settle property disputes, while the Provincial Court does not. Additionally, divorce orders can only be issued by a Supreme Court judge. Unfortunately for couples desiring a divorce, Supreme Court is more expensive and more complex. Supreme Court also has the authority to award costs, meaning that one party may be required to pay some of the costs incurred by the other party.

B. Uncontested Divorce

Amicable uncontested divorce signing documents

For a divorce to be uncontested, the spouses must agree that they both want a divorce, plus they must enter into a separation agreement that spells out the terms of the divorce. This includes such things as child custody, child support and the separation of property. In most cases, uncontested divorces proceed through the court system more quickly, are less stressful and cost less than contested divorces.

1. Get a Divorce Online

In BC cases where there are no children, it is possible to get a divorce online. Users are guided through the process by an online app. Filing online is usually quicker, plus it eliminates many of the mistakes found in traditional filings. In order to file online, the spouses must be in agreement concerning such things as spousal support and the division of property and debts. Once the application is completed, it can be printed out and taken to a court registry for further processing. Although the online app was designed for tablet-sized or larger devices, the filing can be completed on a smartphone.

2. Hire an attorney

Even if the divorce is uncontested, both, one or each party may hire a lawyer (instead of getting a divorce online).  This costs more, but it’s the more prudent approach.  At the very least each party should consult an attorney to learn basic rights so that the end result falls in line with current law.

3. DIY

You don’t have to use a divorce service or a lawyer to get a divorce.  You can complete and file the necessary paperwork yourself.

C. Annulments

Simply stated, an annulment is a declaration that a marriage is invalid.  It is not a divorce but I’m including it because it is a way to terminate a marriage. Once a marriage has been annulled, it is not necessary to obtain a divorce, because it is viewed in the same way as a marriage that never occurred. In order to obtain an annulment, a marriage must be defective from a legal point of view. For example, one of the spouses may have been married previously, and the marriage was not legally dissolved. Another example would be a marriage that involved fraud.

D. Ex Parte Divorce

As previously discussed, one of the legal grounds for divorce is abuse or cruelty. In cases where a spouse has suffered abuse in the past or is in imminent danger of being harmed by the other spouse, it may be possible for the abused spouse to obtain a protection order in much less time than it would take to obtain a divorce. When a protection order is issued against a spouse without notice, it is known as an ex parte order.

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