Steps You Can Skip If You Are Going Through a Consensual Divorce
Getting a divorce may never be easy emotionally. But the process is a great deal easier if it is consensual. A consensual divorce is one in which you and your spouse both want a divorce.
If you can also agree on how to settle all of your family matters, you have an “uncontested divorce,” which is the easiest kind of all.
Canada has “no-fault” divorce. This means you do not have to prove that your spouse did anything wrong in order to get a divorce. You only have to show that your marriage has broken down, which requires a separation of one year.
A no-fault, uncontested divorce is usually the simplest and least expensive. Therefore, it’s the most desirable kind. According to recent information from Statistics Canada, most divorces in Canada are uncontested. Our divorces rarely reach the trial stage.
You may apply for divorce in Ontario in one of three ways:
• Simple application
• General application
• Joint application
A simple application is an application for a divorce only. A general application also includes other claims, such claims for support or property. A joint application is brought by you and your spouse jointly, with the consent of both of you. It may involve claims in addition to divorce as long as you both consent to all of the claims.
If you are going through a consensual divorce, there are certain steps of the divorce process that you can skip.
Serving the Documents
When you apply for divorce by simple or general application, the applicant (you) must serve the divorce papers on the respondent (your spouse). The documents are served using a process called special service. This means that someone besides you who is at least 18 years old must serve the documents.
Afterwards, the person who served the documents must complete and file an affidavit of service. The affidavit of service lets the court know when, where and how the documents were given to the respondent. It requires the person who served them to swear or affirm that the information is true. The affidavit of service must be signed by the person who completes it in front of a commissioner for taking affidavits.
If you and your spouse apply for divorce by joint application, you can skip the step of serving the documents. A joint application means that you and your spouse are applying for all of the court orders. This includes the divorce order, together, and you both complete the necessary documents. The parties to the divorce are telling the court that you both want the divorce.
Filing an Answer
A divorce by joint application is one kind of consensual divorce. Another kind is when the respondent does not file an answer within 30 days of being served with the application. The answer allows the respondent to respond to the claims in the application and to make his or her own claims against the applicant.
When the respondent fails to file an answer within the required period, the divorce proceeds through court as uncontested.
Going to Court
Most importantly, a consensual divorce means that you can skip the court process, including conferences and trial. In Canada, if your divorce is consensual and you agree on all family matters, usually you can get a “desk divorce,” meaning you never have to appear in court.
However, to achieve agreement on all issues, it is often necessary to negotiate with the help of lawyers. Or you can use alternative dispute resolution methods such as mediation or arbitration. Talk to our experienced Toronto Divorce Lawyers about your family law options.