What is Involved in Getting an Uncontested divorce?
An uncontested divorce is one where the former spouses are not fighting over anything and all they are seeking is a divorce. There are two kinds of uncontested divorces:
- the standard type of divorce where one spouse file for divorce against the other spouse and
- a joint divorce were both spouses petition for divorce at the same time.
The process is slightly different for either kind of divorce but not significantly.
Procedure For Getting a Standard Uncontested Divorce
Let’s take as an example the case where one spouse, you, applies for divorce. If you hire us to represent you, we will interview you in order to obtain the necessary information and properly complete the court documents. We will also need a copy of your marriage certificate issued by a government agency and identification to establish your identity.
Once we have obtained the necessary documents and information from you, we will prepare the Petition for Divorce and provide you with a draft to review. We will ask you to make sure that all the information we have included is correct. Once you have approved the petition for divorce you will have to sign the original and send it back to us so that we can file it in court.
Once the Petition for Divorce is filed we will serve it on your ex-spouse. Service of the document means delivering the petition for divorce so that they have notice that you have initiated divorce proceedings. We will usually hire a process server to deliver the court papers to your ex-spouse. If you do not know the whereabouts of your ex-spouse or if your ex-spouse is avoiding service then alternative steps need to be taken to notify them, such as publishing a notice in the newspaper.
Once your ex-spouse has been served with your Petition for Divorce, they will have a fixed number of days within which to oppose the divorce. If they are served within Manitoba, then the time limit is 20 days. If they are served in Canada but outside of Manitoba the time limit is 40 days. If they are served outside of Canada the time limit is 60 days. Once the time limit has passed, we can go ahead and schedule your divorce for a final hearing, if we have also received a Clearance Certificate from Ottawa.
A Clearance Certificate is a document provided by the Central Divorce Registry confirming that neither you nor your ex-spouse have filed any other divorce proceedings anywhere else in Canada. Usually this is just a formality, but it is an essential document and unfortunately the Central Divorce Registry is sometimes slow in providing the Clearance Certificate. In practice this means that even though you would be technically able to go ahead with the divorce as early as 20 days after serving the Petition on your ex-spouse you may have to wait longer than that for the CDR certificate to be provided.
As soon as the deadline has passed after the Petition has been served and once the CDR certificate has been provided, it is possible to go ahead with the final divorce hearing. Uncontested divorces are usually handled by affidavit meaning that you will not need to go to court but instead will provide your evidence to the judge in a sworn statement. We will prepare the affidavit and send it to you for review. Once you have approved the affidavit and confirmed that everything in it is accurate, we will witness your signature using Zoom and then file it with the court.
The judge will review the evidence including your affidavit, the proof of service on your ex-spouse, and the rest of the court documents. If the judge is satisfied that the grounds for divorce have been established, then they will grant the divorce. You will then receive an envelope from the court office containing a signed copy of the divorce judgement.
That does not end the process. All divorces have a 31-day waiting period and even after the divorce is granted neither you nor your ex-spouse are legally entitled to remarry. In some rare circumstances the judge may make an order shortening the 31-day waiting period following the divorce provided that the divorce spouses request this and provide sufficient ground to justify making an exception. Once the 31-day waiting period has passed the divorce becomes final and you can obtain a certificate of divorce from the court office confirming this.
The process is similar if you and your ex-spouse apply for a joint divorce. In a joint divorce both exposes petition the court for divorce at the same time and would have to sign all of the same documents discussed above. A joint divorce requires a measure of cooperation between the two ex-spouses. If you and your ex-spouse are not able to get along enough to get things done together then this is not an option for you. A joint divorce is also not an option where there are any contested issues.
Procedure if Apply for a Joint Divorce
The advantage of a joint divorce is that it will not be necessary to serve the other side would you divorce papers since you are both signing the originating documents. As a result, it is possible to achieve some cost savings by not having to pay a process server to deliver the documents and it may also be possible to speed things up because in a joint divorce there is no waiting period before the matter can be set down for a final hearing since there is no responding party. However, a joint divorce is not appropriate in every situation.
This article merely provides an overview of the process. There are other steps that need to be taken to satisfy the requirements of the court rules and to ensure that everything is done correctly. Every case is different and this article should not be taken as a complete guide to getting an uncontested an uncontested divorce; your situation may be different. We encourage you to set up a consultation with us so that we can review your situation and determine whether your is a case can be handled on uncontested basis.
