An uncontested divorce is one where the spouses have already settled the issues between them, so the court is not being asked to resolve a dispute. The court still grants the divorce, and where there are dependent children the judge must be satisfied that the amount of child support is reasonable before granting it.
Three words get used for the settled routes through the Court of King's Bench of Alberta, and they do not mean the same thing. Two of them describe how a claim is brought; the third describes how it is decided.
One spouse files a Statement of Claim for Divorce and is the plaintiff. The other spouse is the defendant and must be served personally by a third party, and an Affidavit of Service is filed to prove it. Where the defendant does not respond, the plaintiff files a Noting in Default, then the Request for Divorce, the Affidavit of Applicant and a typed Divorce Judgment.
The spouses apply together. The package calls them Spouse 1 and Spouse 2 rather than plaintiff and defendant, service on the other party is not required because both are applicants from the outset, and one or both of them may attend to file.
This is the everyday word for an application decided on the documents that have been filed rather than at a hearing. It describes the method of decision, which is why an uncontested application is often called a desk divorce.
The court publishes separate instruction packages for matters with dependent children and matters without them, and the documents differ between the two. Which package applies is decided by whether there are dependent children, not by how amicable the separation is.
The requirements for a divorce do not all attach at the same moment. Some have to be true when the claim is filed; others have to be true before the court grants the divorce. Running them together is the commonest way the rules are misread.
01 Either spouse must have been habitually resident in Alberta for at least one year immediately preceding the commencement of the proceeding, which the court packages put as having lived in Alberta for one full year before the Statement of Claim for Divorce is filed.
Where the claim relies on separation, the spouses must be living separate and apart at the time the claim is commenced.
For the desk route, the packages add the practical conditions: a valid marriage rather than a common-law relationship, a proper marriage certificate, and knowing where the other spouse is so that they can be served.
02 The court must be satisfied that the marriage has broken down. Under the Divorce Act that is established either by the spouses having lived separate and apart for at least one year immediately preceding the determination of the proceeding, or by adultery or physical or mental cruelty on the part of the spouse against whom the proceeding is brought, of such a kind as to render continued cohabitation intolerable.
Neither of the second two carries a one-year period.
Where there are dependent children, the judge must also be satisfied that the amount of child support is reasonable, which in most cases means the Federal Child Support Guidelines, and the with-children package requires a child support calculation sheet and a Parenting After Separation certificate or exemption.
Resumed cohabitation during periods totalling no more than 90 days, with reconciliation as its primary purpose, does not interrupt the separation period.
The court forms allow the defendant to respond and include a counterclaim for divorce. A response needs to be assessed on what it asks for; its existence alone does not describe every issue as disputed.
A Calgary family lawyer works on the parts of a settled divorce that decide whether it goes through on the documents.
Which package a matter falls under, and whether the desk or the joint route is open to it, is checked before anything is filed.
Use the list in the instruction package for the route you are taking and check that each required document is complete.
Personal service by a third party and the Affidavit of Service that proves it are requirements of the desk route, not formalities.
Where there are dependent children, the calculation sheet and the parenting course certificate are part of what the judge has to be satisfied about.
Terms the spouses have settled between themselves still have to be expressed in the documents the court accepts.
What a divorce costs at court is published, and what legal help costs depends on the matter.
how much divorce costs in Alberta›The full sequence of steps and documents, from the first filing to the certificate, is set out separately.
the divorce process in Alberta›
THEBIL Law is a Calgary family law practice advising and representing clients on Alberta family law matters, including divorce, parenting and child custody, child support, spousal or partner support, family property division, and prenuptial, cohabitation and separation agreements.
Three points in the sequence are fixed. The court renders the divorce judgment; the divorce then takes effect on the thirty-first day after the day the judgment is rendered, which is the usual rule and is subject to the statutory exceptions, including where an appeal is pending; and the Certificate of Divorce may be requested 31 days after the judgment. For current processing times, ask the Court of King’s Bench of Alberta.
If the issues between you are settled, or close to it, the next question is which route your matter is eligible for and what the court will need.
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