Newest KB Articles

Serving Divorce Papers on your Spouse

Thu, 25 Mar 2010 18:40:44 GMT

In British Columbia the personal service of your spouse takes place after stage 1 has been filed. Once stage 1 has been filed you will receive a copy of the stage 1 forms with a court stamp indicating that they have been filed. It is a copy of these filed forms that must be personally given to your spouse by someone other than you.

The person who gives the forms to your spouse must swear an affidavit of service that outlines the details of the service for the court. The affidavit of service is provided to the court with your forms for stage 2.

If you are having the service done by DivorceOptions.ca or another process server the affidavit of service will be included and provided to you. If you are having a friend do the service, we recommend our British Columbia Affidavit of Service preparation service. It includes instructions for service, the fully prepared affidavit of service and instructions for swearing it. You can purchase the affidavit of service preparation service here: Affidavit of Service.

Divorce Order

Tue, 16 Mar 2010 18:13:59 GMT

A divorce order indicates that the divorce was granted. However, it is not considered to be proof that you are divorced. The reason for this is that the divorce is not final until 31 days after it is granted, if no appeal is filed. A Certificate of Divorce is the only document provided by the court that is considered to be proof of the divorce because it is only issued when the divorce is final.

Certificate of Divorce

Tue, 16 Mar 2010 18:03:57 GMT

In British Columbia a Certificate of Divorce is the only proof provided by the court that the divorce is final. A divorce is automatically final 31 days after it is granted if no appeal is filed. Once the divorce is final you may obtain a Certificate of Divorce by filing a Requisition and a copy of your divorce order with the court where the divorce was granted. The court charges a fee of $31.00 per Certificate of Divorce.

Name Change and Divorce in British Columbia

Wed, 09 Dec 2009 22:42:41 GMT

Using your spouse's surname after marriage does not constitute or require a legal change of name under the Name Act of British Columbia. Likewise, after divorce you can use your maiden name again without applying for a legal change of name. According to the Name Act of British Columbia:

After marriage:

A spouse may use his or her surname before the marriage, by birth or adoption.
A spouse can also use the surname of his or her spouse by marriage.

After divorce:

You can use your original surname or maiden name again, and you do not need to apply for a legal change of name.

Using your Original Surname

It is helpful, although not required, to use both your current name and your future name on the divorce papers. This is ordinarily done by providing the future name that you intend to use on the divorce papers as an alias. We provide a place for an alternate name for each spouse on our BC Divorce Questionnaire, which can be used for this purpose.

When to Apply for a Legal Name Change

The Name Act of British Columbia only requires that you apply to change your name if you want a surname other than your surname by birth or adoption or by marriage. Further information regarding obtaining a legal name change can be found here: BC Vital Statistics.

Obtaining New Identification

You may be required to produce identification with your legal name such as a Birth Certificate together with linking documentation such as a Certificate of Marriage or Certificate of Divorce in order to change the name on identification such as your British Columbia driver's license. Further information regarding obtaining a driver's license in another name can be found here: ICBC - Driver Licensing.

What if my spouse will not sign the joint divorce papers?

Mon, 07 Dec 2009 02:32:04 GMT

If your spouse will not sign the joint divorce papers, you can switch to a sole divorce. The procedure is different depending on what stage you are at.

If you have not yet filed the stage 1 forms, simply request a new set of sole divorce forms from us. We do not charge to switch from a joint divorce to a sole divorce as long as your subscription for updates is current. Every purchase includes a free 60 days update subscription.

If you have already filed stage 1 and your spouse is refusing to proceed with stage 2, the procedure is more complicated. Again, we do not charge to obtain a new set of sole divorce forms but because stage 1 was filed as a joint divorce you will have to file additional papers with the court. These additional papers are not included in our divorce package but can be purchased for a reasonable fee. If this situations occurs, please contact us for further information.

Legal Requirements for Divorce in British Columbia

Mon, 07 Dec 2009 02:10:40 GMT

There are two legal requirements to apply for divorce in British Columbia. The first requirement is that your situation must qualify as marriage breakdown. The second requirement is that the British Columbia Supreme Court must have jurisdiction to hear your divorce action.

Marriage Breakdown

Under the Divorce Act, marriage breakdown is the only admissible ground for divorce. Marriage breakdown can be established by adultery, cruelty or separation of one year.

Separation of one year is the preferred ground to establish marriage breakdown in an uncontested divorce. Proof of separation is provided to the court by affidavit, which does not require a court appearance. If your marriage broke down as a result of adultery or cruelty, it is still possible to obtain a divorce on the basis of separation of one year.

The date of separation is the date when one or both spouses have decided the marriage has ended. Usually it means that one spouse moves out but in some cases the spouses can continue to reside under the same roof for some time until new arrangements are made. In the interim, the spouses have separate households within the same house and no longer function as a family unit.

You may attempt to reconcile during the period of separation and still use the original date of separation as long as you and your spouse did not reconcile for a period totalling not more than 90 days.
You may expedite the process and file for divorce in British Columbia anytime after separation. Although the court cannot grant the divorce until you have been separated for one year this will reduce the total time it takes to obtain a divorce.

Jurisdiction of the Court

You can apply for a divorce in British Columbia if either you or your spouse has ordinarily resided in British Columbia for the past year. Proof of residence is provided to the court by affidavit, which does not require a court appearance.

Child Support is Less Than Guidelines

Mon, 07 Dec 2009 01:54:32 GMT

The court expects that child support will be paid according to the Child Support Guidelines. If child support is not being paid or is less than the applicable guideline amount, you must provide a full explanation to give the court enough information to satisfy the requirements of the Divorce Act (Canada). It is very difficult to obtain a divorce when child support is less than the guideline amount. Both parents simply agreeing to the amount is not ordinarily considered to be a valid explanation.

If the court is not satisfied with your explanation, it can refuse to grant your divorce. You may want to discuss your situation with a lawyer if child support is not being paid or is less than the applicable guideline amount.

Will the court return my Certificate of Marriage?

Fri, 27 Nov 2009 19:48:44 GMT

The court does not ordinarily return the Certificate of Marriage unless it has some special significance. To have the Certificate of Marriage returned your certificate must be irreplaceable and you must have a very good reason for wanting it back (such as for a divorce in another jurisdiction that does not recognize divorce in Canada).

If you think that your situation qualifies for a return of the Certificate of Marriage, you must make the request when the divorce forms for stage 1 are filed.

I'm moving out of BC soon. Can I still apply for divorce in BC?

Wed, 25 Nov 2009 18:06:06 GMT

To apply for a divorce in any province in Canada the provincial supreme court must have jurisdiction to hear your case. Jurisdiction is established by either you or your spouse having resided in that province for one year immediately preceding the start of the divorce.

If you do not reside in BC but your spouse does, you can still apply for a divorce in BC. Or, if you reside in BC but your spouse does not, you can still apply for a divorce in BC.

Once the process has been started and stage 1 has been filed in court it is not necessary for either party to continue to reside in BC.

Arrears of Child Support

Tue, 24 Nov 2009 19:09:49 GMT

Arrears of child support are only applicable if you have an order or an agreement in writing to pay child support and the payor is not up to date with the payments. If this is the case, the court wants to know the approximate amount of arrears and what the recipient has done to collect it. The divorce will not be affected by arrears but may be rejected if nothing has been done to collect the arrears. If there are arrears, a good course of action is to file the order or written agreement with the Family Maintenance Enforcement Program, which is a free program that collects child and spousal support payments in BC.