By Sean Schaefer
A divorce is the legal end of a marriage. Only the court can grant it, provided the parties involved have followed the correct steps on whatever path they have chosen to get there. Once the process is completed, the court will issue a divorce certificate proving that you are no longer married.
The first thing to do is to ensure you are eligible to end the marriage. All divorces in Canada are governed by the federal Divorce Act, which states that the only ground for divorce is marriage breakdown. The Act says you can show your marriage has broken down if any one of the following criteria applies to you:
- You have been living apart for one year or more.
- Your spouse has been physically or mentally cruel to you.
- Your spouse has committed adultery.
As the Ministry of Justice explains, “It is always a good idea to get legal advice before you apply [for a divorce]. A lawyer can tell you about your rights and responsibilities and explain how the law applies to your situation. He or she can also explain what other documents you may need to give the court.”
Contested or uncontested?
The divorce process depends on whether both parties agree to the dissolution of the marriage (uncontested) or if one party is challenging the process (contested).
With a contested divorce, both parties must appear in court to present their case. Before that happens, both parties will be encouraged to use alternative options to resolve their issues and reach an amicable divorce.
With an uncontested divorce, the ex-partners must agree on issues such as the division of property, spousal support, decision-making responsibility (formerly known as custody) and parenting time (formerly known as access).
Once these matters are settled and the mandatory one-year separation period (except in cases where one spouse has been cruel or committed adultery) has passed, you can apply for a divorce order from the court.
Generally speaking, an uncontested divorce in Alberta takes about three months to be wrapped up and this is the simplest and least expensive means of obtaining a divorce. An uncontested divorce is also common with couples who signed a prenuptial agreement.
A Statement of Claim
With an uncontested divorce, the first step is to submit a Statement of Claim for Divorce application to an Alberta court. This form and others that will be required can be downloaded here from the Court of King’s Bench of Alberta.
Since you initiated the divorce you will be the plaintiff and your spouse the defendant.
Once the Statement of Claim is completed and signed by the plaintiff it must be filed at the courthouse. It will then be “served” or delivered to the defendant by someone other than yourself. A friend, family member or a hired professional process server can be used to complete this step.
Those served with a statement of claim should not ignore it. They could be considered to be in default and the process can continue without their input.
After the service of the Statement of Claim, the defendant has 20 days (one month if they are out of province but still in Canada, and two months if outside of Canada) to dispute it.
If the defendant does not file a dispute (Statement of Defence), then you can complete the forms provided in the link above, such as the Sworn Affidavit of Service, Noting in Default, Request for Divorce, Affidavit of Applicant and a proposed Divorce Judgment.
An important 31 days
A justice will look at the file. As long as they are satisfied you have met all the conditions, they will sign a divorce judgment, with copies of that sent to both the plaintiff and the defendant.
In most cases, a divorce takes effect 31 days after the judge grants the order. At that point, you can request a divorce certificate confirming the divorce and the date it took effect. This is an important document because it proves you are no longer married. This certificate is also needed if you want to re-marry.
If you are considering a divorce in Alberta, you should familiarize yourself with the Divorce Act, a federal law in effect since 1968, with updates in 2021. It covers a range of aspects including separation, child support, spousal support, and parenting arrangements.
A basic understanding of this Act will allow you to make informed decisions and protect the rights of you and children of the marriage.
Call us for assistance
You do not have to hire a lawyer to file for divorce. However, the decision not to hire legal counsel may come back to haunt you. The divorce process is not simple. A family lawyer can ensure that your rights are always protected and that your divorce properly progresses as quickly and smoothly as possible.
Lawyers also have greater access to legal resources and can identify situations that could result in a potentially unequal division of assets or parenting time.
A lawyer may also be able to resolve your divorce in a more time-efficient manner. That will allow you to move on with your life, benefitting you and your family.
At Demas Schaefer we know that divorce can be emotionally challenging. We are here to provide the support and legal representation you need. Contact us for a free consultation to explore your options.