Desk Order Divorce – How to Get Divorced Without a Court Hearing
When two spouses want to get divorced in British Columbia, they need an order of a judge of the Supreme Court of British Columbia under the Divorce Act, RSC 1985, c 3 (2nd Supp) before they can be legally divorced. A desk order divorce, undefended divorce, or uncontested divorce, is an order issued after a judge reviews an application for divorce and signs the divorce order “on their desk”, without the need for a hearing.
A judge will need to have specific evidence and documents before them before they can sign a desk order divorce order. Therefore, you must pay careful attention when preparing your application so that you do not miss any of the required documents or steps. If there are missing sections to your application, the court registry will refuse it and provide you with reasons for that refusal. You will have to fix the issues and submit the application again. This process will happen as many times as required until the application includes all the evidence required for a judge to sign it and grant the divorce order. If a court registry is busy, it can take them a few months to review your application each time you submit it.
When preparing a desk order divorce application, I rely on checklists to ensure all the required documents are included in my application. My main checklist includes a list of all the documents that must be submitted in addition to specific information that must be included in those documents for the court registry to accept them:
- File a notice of family claim, notice of joint family claim, or counterclaim with the court registry.
- Ensure that it contains a claim for a divorce
- File a certificate of marriage alongside the notice of family claim. If you cannot obtain a certificate of marriage, you will have to draft affidavits for witnesses to the marriage ceremony to swear.
- Serve the notice of family claim on the other spouse and obtain an affidavit of personal service from the person who served the notice of family claim.
- The affidavit of personal service must specify how the other spouse was identified by the process server (the person who served the notice of family claim).
- Draft a requisition in Form F35 (available on the Supreme Court Website).
- Prepare the divorce applicant’s Form F38 affidavit.
- It must be signed by the applicant (deponent) and the commissioner of oaths before whom the affidavit is sworn.
- The affidavit’s exhibits must be certified by the commissioner, all pages must be consecutively numbered per the Supreme Court Family Rules, and any changes to the printed text must be initialled by both the deponent and the commissioner.
- The F38 affidavit must be sworn within 30 days of the time the application for a desk divorce order being submitted, after the respondent’s time for filing a reply has expired, and after the parties have separated for one year.
- Draft a divorce order in form F52 (available on the Supreme Court Website).
- The court registrar will need to sign a certificate of pleadings showing that the documents filed in the case are sufficient. Include the blank certificate with your application.
- Depending on the reason why this case is an undefended family case, do one of the following:
- Include a requisition searching for a response to family claim.
- File a notice of withdrawal in Form F7.
- File a letter from each party’s lawyer confirming all issues other than a divorce have been settled between the parties and both parties consent to a divorce order.
You can only file the desk order divorce application after parties have lived separate and apart for one year, the notice of family claim has been served, and the time limit for replying to your notice of family claim has expired.
After doing all the steps required, you can file your application for a desk order divorce at the same court registry where you started your family claim. However, please note that the above-named steps assume the parties have resolved all issues between themselves other than the requirement to obtain a divorce order. If there are other issues to be resolved between the parties, such as the division of family property, the determination of spousal support, parenting arrangements, or child support issues, the parties will first need to resolve those issues, perhaps by negotiating and signing a separation agreement or by going to trial and seeking a court’s input on the issues.
The desk order divorce process is the fastest and easiest way of obtaining a divorce order for a couple who are separating and it is only available to those couples who have resolved all issues between themselves other than the requirement for a divorce order. It is significantly easier for a couple to reach this state quickly and efficiently if they have a marriage agreement or prenup before they become spouses, which is why I recommend to all my clients that they consider preparing and signing a marriage agreement.
If you need assistance with preparing and submitting your application for a desk order divorce, I and the other lawyers at Pax Law Corporation have the experience and knowledge required to assist you with this process. Reach out today for a consultation about the assistance we can provide.