SIMPLE DIVORCE
(Uncontested Divorce)
Divorce is usually the final step in the separation process. It happens after the separation agreement is negotiated and signed, or after a final order.
Uncontested divorces can be obtained relatively efficiently compared to contested ones, provided certain criteria are met.
The Divorce Act stipulates a minimum separation period of one year before a divorce can be granted. During this time, spouses must live separate and apart,
with at least one party having the intention to end the marriage. It's important to note that physical separation from the marital home is not always necessary; what matters is the subjective intention to live apart.
Once the one-year separation period has elapsed, either spouse can apply for a divorce, provided there are no other outstanding issues, such as child custody or division of property, that require resolution.
Uncontested divorces, where both parties agree to the terms of the divorce and any associated matters, can often proceed more swiftly than contested ones, saving time and reducing legal costs.
After the divorce order is issued, there is an opportunity for either party to appeal the order. After 30 days, if there is no appeal, the court can issue a divorce certificate. It is the divorce certificate,
not the divorce order, that confirms you are legally divorced and entitled to remarry.
Domestic Contracts
Domestic contracts serve as legal agreements entered into by individuals in or preparing for domestic relationships, such as marriage or cohabitation. Governed by the Family Law Act, these contracts encompass prenuptial agreements, cohabitation agreements, and separation agreements.
Marriage contracts
A marriage contract is also called a pre-nuptial agreement. It is a contract that parties may enter into prior to marriage or during the marriage that sets out their rights and obligations under the marriage or in the event of marriage breakdown. Recall that marriage breakdown is not limited to the date of divorce, but means the earliest of:
- the date on which the parties separate with no reasonable prospect that they will resume cohabitation;
- the date on which one of the parties gives notice to the other in writing of an intention to live separate and apart;
- the date of the dissolution of the parties' marriage;
- the date of the annulment of the parties' marriage; or
- the date of death of either party.
Cohabitation agreements
Where two persons are cohabiting or intend to cohabit and are not married to each other, they may enter into a cohabitation agreement. Similar to a marriage contract (except the parties are not married to each other), parties entering into a cohabitation agreement can agree to their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including
- ownership in or division of property;
- support obligations;
- the right to direct the education and moral training of their children; and
- any other matter in the settlement of their affairs.
Note that should the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be marriage contract.
Separation agreements
Separation agreements are addressed at section 54 of the FLA. At this point, the parties have separated and are living separate and apart. A separation agreement can be entered into whether the parties were married or were cohabiting outside of marriage, and it can deal with all matters except for divorce (which would require the initiation of a court process), including:
- ownership in or division of property;
- support obligations;
- the right to direct the education and moral training of their children;
- any other matter in the settlement of their affairs.?
Unlike cohabitation agreements, which will be deemed marriage contracts upon marriage, an agreement reached prior to separation is not deemed to be a separation agreement for the purposes of section 54 of the FLA as the parties must be living separate and apart at the time of entering into the agreement.
