Daniel Romano, BCL, LL.B., MA and Justine Covey, LL.L., JD.
We aren’t fighting, but we do want to get divorced. How do we proceed?
Surely we have all seen them: that strange couple that could not get along while they were married but became much friendlier to one another once they separated and decided to divorce each other. Sometimes the rapprochement is immediate, sometimes it takes years. Sometimes they can only manage to be cordial and polite, and sometimes they become best of friends and will even help one another out and maintain the same social circles. These couples are the perfect candidates for an Amicable Divorce. There are basically two types: the Uncontested Divorce and the Joint Divorce.
With an Uncontested Divorce, one party – the Plaintiff – files the application for divorce and has it and copies of the required exhibits legally “served” upon the other person, the Defendant, as you would do in any other divorce case. The difference here is that the Defendant does not contest, but rather is prepared to agree with everything that has been requested. The parties would then sign a consent agreement outlining their agreement. If they submit a complete file including detailed affidavits for each party, the parties can even obtain their divorce without having to testify in Court.
With a Joint Divorce, the parties file the proceedings together. There is no need to serve the proceedings on the other person because there is no “Defendant”. Both parties are essentially co-applicants. They would still need their consent agreement and their basic evidence such as birth and marriage certificates as well as the other exhibits.
There are two important legal differences between the two procedures. One is that in the joint divorce, the attorney, mediator or notary assisting the couple represents both parties. If an argument arises and the divorce becomes contested, each party will then have to represent themselves or hire their own lawyer. The other difference is that with a joint divorce, you and your spouse must be living separate and apart at the time that the proceedings are instituted. Unlike the standard divorce procedure, a joint application for divorce cannot be filed where the reason for the breakdown of the marriage is adultery or cruelty suffered by one of the spouses.
In either case, the parties would have to address the various realities that may apply to the file in question such as child support, custody and access rights, spousal support, and partitioning the value of the marital property. All of these parameters would usually be addressed in the draft consent agreement signed by the parties.
Note that, even in the case of an amicable divorce, your application can be rejected if the proceedings are incomplete, or if the Court finds that the divorce agreement is somehow unfair to one of the parties. If the Court accepts the draft agreement of the parties, it will render a Judgment of Divorce incorporating the agreement which will then have full force and effect. The Certificate of Divorce will then be issued on the 31st day following the date of the divorce judgment. Whether you manage all of this on your own or with the help of an experienced legal professional, you can congratulate yourself for having successfully navigated the most direct path out of a difficult and sometimes painful situation.
If you have any questions about a possible, pending or ongoing divorce, please contact us and schedule a consultation with one of our attorneys.