Divorce Law

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Many people want an uncontested divorce often called a desk order divorce because only the papers go to the judge’s desk; no-one makes an appearance at court.

The court requires that there not be any children of the marriage (children currently under 19 years of age or 19 or over 19 years of age but unable to remove themselves from the charge of their parent[s])

If there are children then the court is required to investigate whether the parents have properly taken care of the issue of child maintenance. If they have not, then no divorce will be ordered.

Often the best way of solving the child maintenance issue is by way of Separation Agreement where the parties agree and sign an agreement about child maintenance. If a Separation Agreement cannot be done often people resort to Provincial Court just for the issue of child maintenance and then use that court order to satisfy the requirements for the divorce.

When applying for a divorce it is absolutely essential to have an original marriage certificate that can be understood in English. Substitutes such as a notarized copy that has been translated into English can be used in certain circumstances. There are even things that can be done to substitute where no certificate is available.

The other party MUST be served. That doesn’t mean the other spouse has to sign for the papers. The other party is offered a civil chance to take the papers willingly from the server, and if the other party won’t take them civilly, then the server often throws them at the feet of the other party and utters the words: “You have been served” and that constitutes service. One cannot stop the Rule of Law by refusing to accept papers, or not participating in court.

It has been my experience that many clients have trouble dealing with what they call the bureaucracy of the procedure and the delays that develop and they find it easier just to pay the small fee and have a lawyer speak for them and deal with the problems that may develop.

It has also been my experience that clients needlessly fear that the other party will resist, when in fact, they want finality as much as the client. Often the best action is to simply tell the other party that one is thinking of a divorce and ask the other party what they think. Most of the time they also want the divorce and will help the procedure because they have been asked.

The best thing the other party can do once served, is do nothing. If they do nothing the uncontested divorce will be granted.

The registry must also check to see if there are any other outstanding files requesting a divorce of the parties (Registrar’s Certificate)and if there are, those files must be closed or withdrawn. Beware the joint application where the other party can start to refuse to go along with the procedure and cause the file to remain unresolved but also open, asking for a divorce and therefore blocking any future requests for a divorce as well.

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