An uncontested divorce is a court proceeding where the parties are not disputing the claim of a divorce, as compared to a joint divorce application where the parties are mutually seeking a divorce. In both cases, it is preferential that the parties have agreed on all related issues, such as child support, spousal support, division of property, parenting time and decision-making responsibility prior to filing for their divorce.
The uncontested divorce represents a simplified divorce procedure, in that court appearances are generally not required.
Types of Uncontested Cases
When filing a divorce in Ontario, there are two types of uncontested cases:
Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, the non-filing spouse is served with the divorce papers. That spouse then has 30 days to contest or challenge the divorce, or make a claim for such things as support, property, custody, etc. If the non-filing spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the court.
Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both husband and wife sign and swear the divorce papers. Neither spouse is suing the other for divorce – you are telling the court that you both want the divorce.
Uncontested Divorce Requirements
Living Arrangement: Either you or your spouse’s current place of residence must be in Ontario and must have been so for at least one year at the time the divorce is filed.
Divorce Only: When both spouses agree about the divorce, it is known as uncontested. Therefore, your only claim can be for divorce. If you have other issues to deal with, such as support or custody, and you and your spouse cannot agree on the terms, you should seek legal advice from one of our associates.
Legal Basis for Divorce: For the grounds of separation, the Divorce Act requires that you must be living apart for one year. However, this does not necessarily mean that you must be living in separate residences. You may be living in the same residence for economic reasons, but still considered to be living separate and apart under the same roof. You can still file for divorce before the one-year separation period but the divorce will only be granted once that period is over.
Separation Agreement: A separation agreement is not required to file for a divorce in Ontario. However, many couples filing an uncontested divorce in Ontario decide to file a separation agreement in court with their Ontario divorces. Filing a separation agreement with an Ontario divorce application allows individuals some peace of mind in knowing that it is an enforceable document in court.
Spouse is not Present or Missing: You may still be able to file an Ontario divorce without serving your spouse with the divorce documents even if you cannot locate your spouse and need to file a divorce.
Steps to File An Uncontested Divorce
To complete an application for divorce, you must complete a Form 8A: Application and Form 36: Affidavit for Divorce.
In addition to the application, you must:
- File the original marriage certificate or license with your Application
- Pay the filing fees with the Court
Lastly, you will need to complete and file the forms related to any other form of relief that you and your spouse have agreed to along with the divorce.
Property Division
If your divorce application includes agreed-upon arrangements for property division, or property division as well as child and/or spousal support, you will also need to file a Form 13.1: Financial Statement.
Parenting Time
If your divorce application includes agreed-upon arrangements for parenting time and decision-making responsibility, you must complete and file a Form 35.1: Parenting Affidavit.
Conclusion
The best person to understand how much you might be paying or receiving for support, or what is the best procedure for the filing of your divorce, is your lawyer.
For more information about divorce or separation laws in Ontario please contact us now and book a free 30-minute consultation.