The Do It Yourself Divorce Process

There are situations where a Justice may not let you get a divorce, these include:

1. Spouses who intentionally mislead the Court will not be allowed to divorce.

An example would be two spouses agreeing to state that they have been separated for one year when in fact they have only been separated for one month.

2. You and your spouse have children that you have not worked out an arrangement for. 

The Justice must be satisfied that reasonable arrangements have been made to take care of and support the children financially after the divorce. What is reasonable will depend on each couple’s circumstances, but the Justice will decide if the arrangements that have been made are fair.

You must ensure that these issues are dealt with before going to Court for a divorce application or else you may have to go back again after having dealt with any issues that were found.

It is possible for a couple to be granted a Divorce Judgment before they have dealt with the division of matrimonial property. This includes all of the property that they have acquired during their married life. However, most of the time, matrimonial property will be divided between the spouses during the divorce proceedings, either through an agreement or by following a Court Order. If the property is divided by an agreement between the spouses, each spouse must have had independent legal advice before entering into that agreement. If the property is divided by a Court Order, Alberta’s Matrimonial Property Act will govern the terms of the Order.

Property division can be very complicated and it is recommended that you speak with a lawyer about all of your options. For more information, see the Student Legal Services pamphlet “Division of Property: Married Couples”.

Under the Divorce Act, one spouse must be “ordinarily resident” in Alberta. This means you must have lived in Alberta for one year immediately before the divorce action is begun. If you have children, it is usually best to file your divorce action in the province where your children live.

You may be able to get divorced in Alberta no matter where you were married. If you were married outside of Canada, the Court will need some proof that the marriage was valid according to the law of that country. If this applies to you, you will need a marriage certificate and an affidavit proving the marriage was in solemn form (valid). If you were married in a Canadian province other than AB, a marriage certificate issued by the government of the province where you married would be sufficient proof of an out-of-province marriage. Please remember that you must still meet the “ordinarily resident” requirement (lived in Alberta for one year before your divorce action) no matter where you were married.

The length of time from start to finish for a divorce action depends upon how quickly you (or your lawyer) finish the paperwork, how easy it is to locate and serve the documents on your spouse, and how many complications there are in the case. An uncontested divorce will generally take between 6 months to a year. A contested divorce could take several years.

Various things might happen during the 31-day waiting period between the date of the Divorce Judgment and the date you can make an application for a Certificate of Divorce:

1. You and your spouse might get back together. If so you should apply to set aside the Divorce Judgment. You would then once again be considered married to each other.

2. A spouse might appeal the Judgment. If this happens, no Certificate of Divorce can be issued.

NOTE: An appeal cannot be started after the Certificate of Divorce has been issued.

3. A spouse may apply to set aside the Divorce Judgment because it was obtained as a result of fraud. This application would have to be finished before a Certificate of Divorce could be issued.

The 31-day waiting period may be waived if there are special circumstances that make it in the public interest to grant the divorce earlier. An example of special circumstances would be one spouse wanting to remarry within a short period of time due to the impending birth of a child or death of a family member.

It is unlikely any of these occur, and the Certificate of Divorce is granted 31 days after the Divorce Judgment, on application to the Clerk of the Court.

There must be arrangements made for children under 18 whenever you are going through a divorce proceeding. These are known as corollary relief Orders.

Corollary relief Orders are Orders dealing with spousal support, child support, child custody and access. Corollary relief Orders can be made for a limited time (called an ‘Interim Order’) or they can be made as a final Order. They can be made after separation but before a divorce or during the divorce process.

Note: if there are children, a Justice must see that there have been arrangements made for their support before granting a divorce judgment.

Parenting After Separation Seminar

If you and your spouse have children under the age of 16, you MUST attend the Parenting After Separation Seminar before making any application to the court dealing with your children, or before applying for a Divorce Judgment. After completing the course, parents will receive a certificate of completion that will be filed with the courts.

For more information, please contact Spectrum Family Law and schedule a consultation with a family law specialist.