How to Get a Divorce in British Columbia
Are you married or in a common law relationship? You don’t have to obtain a court order to be separated if you have been in a common law relationship. For the purposes of the Family Law Act in British Columbia, you are in a common law relationship if you have been living in a marriage-like relationship with another person for two years. It is crucial to note that the period of time you should have cohabited in a marriage-like relation to qualify as common law varies under different statutes. For example, according to the Income Tax Act, you are in a common law relationship if you have been cohabiting for at least one year.
Couples may divorce on different grounds in Canada. The common ground for divorce is separation for more than one year. The other common grounds for divorce are adultery and physical or mental cruelty. These grounds do not require you and your spouse to wait for one year before filing for divorce. Regardless of the ground, it is advisable to contact a family lawyer in Vancouver if you are going through a divorce in British Columbia.
Perhaps you are legally married and want to adopt the one-year separation approach. The law considers you separated the moment one spouse expresses to the other party or makes obvious their intention to separate. When one party expresses the intention to separate, the separation takes effect even if the other party does not agree.
For you to be considered separated, you must be living different lives even if you still share a home. This means that you should not be sharing a bed, cooking together, or spending leisure time together. You must be living separate and independent lives.
When applying for divorce, you should apply to the BC Supreme Court. Before granting the divorce, the court must be satisfied that you have made reasonable arrangements regarding your children, including child support agreements. You can file a divorce any time after separating from your spouse, provided you have been separated for a minimum of one year.
What Happens If You and Your Spouse Weren’t Married Within Canada?
You shouldn’t worry even if you and your spouse weren’t married in Canada. All that matters is that you were married in another jurisdiction, and you have a marriage certificate or an equivalent of a marriage certificate from that jurisdiction. If you meet this requirement, you can begin your divorce filing in BC. Let’s say that you are your spouse were married in Korea. In this case, you should obtain a marriage certificate. You can obtain these documents from the Korean consulate in Vancouver.
You have to meet one more condition before you commence your divorce proceedings. You should have lived in the jurisdiction where you intend to file the divorce for at least one year.
Can Your Immigration Status Prevent You from Filing a Divorce?
No, your immigration status doesn’t matter and will not affect your ability to file for divorce. You can still apply for a divorce even if you don’t have permanent residency in Canada. However, you should meet the requirement of having lived for at least one year in the jurisdiction where you intend to file for divorce. You should also have a valid original marriage certificate or an equivalent document from any jurisdiction.
What If Your Spouse Sponsored Your Permanent Residency?
Well, this could lead to other legal issues. However, it will not affect your ability to file a divorce in Canada.
What is the Process of Applying for Divorce in Canada?
The first step involves submitting court documents to the Supreme Court of British Columbia. You should choose a registry that is closest to where your children live. If you have no children, you should file the court document to a court registry that is nearest to where you reside. You should file the following court documents:
- A Notice of Family Claim (this could be a Joint Notice of Family Claim)
- A marriage certificate or an equivalent document
- A divorce registration form
Perhaps your marriage certificate is in another language other than English. In this case, you should have the document translated and attached to an affidavit before filing.
Upon submitting the registration form, it will be registered at Ottawa’s Divorce Registry that a divorce was started in BC.
If you file a Notice of Family claim instead of a Joint Notice of Family Claim, a copy should be served to the other party. You should contact a lawyer to find out how you should proceed.
It’s crucial to note that once you file the original marriage certificate, you will not get it back. You will have to forfeit the certificate forever.
Even if spouses agree about the divorce, child support, parenting arrangements, and property issues, they still need the court to grant the divorce. In such a case, a couple can jointly apply for divorce. Jointly filing for the divorce eliminates the need to serve the other party. It also allows the couple to apply for an undefended or uncontested divorce (also known as a desk-order divorce) together.
What Happens When One Spouse Settles Everything and Only Seeks a Divorce Order?
Having a spouse settle everything is great news, way better than fighting. However, you should seek legal counsel to ensure that the settlement terms are reasonable and favour both parties. After establishing that you have settled on fair and reasonable terms, you must file and serve certain documents if you are not filing a Joint Notice of Family Claim.
Our lawyers always advise clients to ensure that they seek adequate legal advice to find out how to proceed with a divorce. It is particularly crucial to seek legal guidance when children are involved or if you want to get the divorce order by way of a desk order. A desk order divorce involves getting a divorce order by submitting court documents.
Filing a divorce in British Columbia is not a simple process. The process is characterized by many pitfalls. However, if you understand which documents you should submit, you can avoid most of these pitfalls.
A divorce is considered to be final 31 days after the court grants a divorce order, provided none of the spouses file an appeal. You can only remarry after this 31-day period has lapsed.
