Joint Divorces In British Columbia

“Joint Divorces In British Columbia”

By Larry W.O. Smeets

So you and your spouse have concluded that you do not want to remain together, and are going to divorce. You have heard stories about how couples who go through a divorce are embittered against each other for life, and are ruined financially by the process. Is that an unavoidable outcome of divorce? While I am by no means an advocate of divorce (on the contrary), as a lawyer who has practised law for 23 years I believe that if you and your spouse are in fundamental agreement about how to end your own marriage, this need not occur in your own particular case. Here’s how you might approach doing this in British Columbia.

First, the two of you should have a separation agreement prepared in which you resolve the issues arising out of the breakdown in your marriage. One of you should retain the services of a lawyer who knows family law to assist you with the preparation of a draft separation agreement, basing it on the terms agreed upon by both of you. The lawyer will prepare the draft according to the instructions of one of you alone, and then arrange to have a copy of the draft agreement presented to the other party in the relationship for his or her consideration.

Once the other party is given a copy of the draft separation agreement he or she will need to meet with a lawyer of his or her own choosing, and have that lawyer review the draft agreement and provide him or her with independent advice on how the draft agreement affects his or her legal rights and obligations. It may be necessary to modify the agreement somewhat before the lawyer and the other party are prepared to sign the separation agreement. Once they are satisfied with the terms outlined in the draft agreement, the other party will sign it in the presence of the lawyer, who also will sign a Certificate of Independent Legal Advice confirming that the other party signed the agreement freely and with full knowledge of how the terms of the agreement impacted on him or her legally. If the other party requires assistance in locating a lawyer who can provide such a service, the firm of the lawyer drafting the agreement often is able to assist the other party by providing a referral to such a lawyer.

Once the separation agreement is signed by both parties, the two of them will have resolved all issues arising out of the breakdown in their marriage (i.e., custody and access, child support, spousal support, property division, pension division) except for the divorce. To obtain the divorce at least one of them must make an application to the Supreme Court of British Columbia. The lawyer who prepared the draft separation agreement can then assist the two of them together to obtain a divorce. The divorce can proceed as a desk order divorce, which means essentially that neither of them will be required to appear in court to obtain the divorce; it will be granted by the court once the judge handling their case is satisfied that all the necessary documentation has been filed and all the proper requirements have been met.

The court will be particularly concerned to ensure that the two parties have been separated for at least one year. The only way the two parties can obtain a divorce without being required to be separated for at least one year is to provide the court with evidence of adultery or of physical or mental cruelty. The court also will be particularly concerned to ensure that the two parties have made reasonable arrangements for support of any infant children of the marriage. That is why the separation agreement is such an important document. The judge will want to review it before granting the divorce.

While the divorce can proceed as a joint family claim, only one spouse needs to file the Notice of Joint Family Claim with the court. The lawyer filing the divorce probably could take instructions from each party independently, where required, but primarily from the original party who retained him or her to prepare the draft separation agreement.

If either party wants to change their name to something other than their birth name or their married surname, they can do so as part of their application for divorce. Alternatively they can do this separately by applying through the BC Vital Statistics Agency.

It should take approximately three months (barring any unforeseen developments) to obtain the desk order divorce. To this one should add the time required to negotiate and sign the separation agreement. It therefore is appropriate to anticipate that the two parties are looking at approximately six months to complete the whole process. This estimate, I hasten to add, is contingent on the two parties proceeding with the divorce in basic agreement on how the issues arising out of the breakdown in the marriage are to be resolved. If there is substantial disagreement, this could result in the prolongation of the time required to negotiate and settle the terms of the separation agreement. If it is not possible to do so by agreement, then it may be necessary to proceed into court to resolve such differences.

One positive outcome of such an approach is that the total cost to the parties of obtaining the divorce will be reduced substantially. While it is difficult to say exactly how substantial the reduction will be, I expect that the total costs of preparing the separation agreement and obtaining a desk order divorce in the manner described above should be at least one tenth the total cost incurred by parties in a contested divorce. Another positive outcome may be that the parties are not embittered against each other at the end of the divorce, in the same way that often occurs when they go into court and duke it out over various issues. Some even manage to salvage a friendship out of the ruins of their marriage.

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