Getting a Divorce Without My Spouse’s Consent in BC 

Some divorces in British Columbia are not only contested over the settlement terms but also over the need to get a divorce in the first place. One spouse may feel that the marriage has broken down irretrievably while the other spouse feels that they can “work it out.” 

Certain requirements must be met for a divorce to proceed in BC, but the consent of both spouses is not necessary.  

However, divorces that proceed along those lines can become more complex and time-consuming, with one spouse pushing ahead with the divorce proceedings while the other spouse tries to prevent it. Sometimes, the non-consenting spouse cannot be tracked down and even tries to evade the divorce proceedings. 

Let us find out more about what you can do in these situations.

Do you need a lawyer to get divorced in BC?

There is no legal requirement to hire a lawyer to divorce in British Columbia—but most people require some legal assistance during the process, even to draw up a settlement agreement or simply to notarize documents. 

Divorces can be tough on families. A family lawyer can provide support and legal guidance during challenging times, protecting your rights, and helping you navigate the legal processes and risks involved without making any mistakes that could impact your future. 

If your spouse does not consent to a divorce, legal assistance is highly recommended as the legal complexities are greater and the risks of a case going to trial increase. 

An experienced divorce lawyer can help avoid unnecessary delays and expenses, as well as the stress of divorce court hearings. Collaboration, mediation, or arbitration are usually preferable to litigation and a trial, especially if you have children. 

Grounds for divorce in BC

The grounds for divorce are the legal reasons acceptable for a divorce to be granted. In BC. there are three acceptable reasons:

• Separation for at least 12 months
• Adultery
• Physical/mental cruelty in the marriage

Of these grounds for divorce, separation is by far the most common in BC. Often, the need to divorce is a mutual decision but if one spouse moves out of the matrimonial home and the other spouse wants to continue with the marriage, divorce proceedings can still progress.

Is spousal consent ever required for divorce in BC?

In British Columbia and as per the federal Divorce Act, spouses can initiate divorce proceedings and serve divorce papers on their partners at any time even without their consent—and even if they cite religious or cultural grounds.

However, a divorce will only be granted if a spouse can prove one of the legal grounds for divorce cited above AND that one of the spouses has lived in British Columbia for at least 12 months prior to filing for divorce.

What if my spouse is evading divorce?

If your spouse does not consent to divorce in BC, you have the following options:

• Try to persuade your spouse that it is the right thing to do in the circumstances.
• Seek legal advice to discover your options based on your situation.
• Enter mediation to attempt to resolve the matter.
• File for divorce and serve papers on your spouse without their consent—and ask the courts to decide if a divorce is warranted.

Serving divorce papers formally notifies your spouse that you are commencing divorce proceedings and is a legal requirement. In some cases, a spouse who is surprised by being served divorce papers or is expecting them and does not consent to the divorce will try to evade being served.

If you cannot track down an evasive spouse and the process server cannot physically hand the papers to him/her, this will not necessarily stop the divorce process from passing through the BC courts. Even if the spouse has left the country to avoid being served, it will not necessarily prevent the divorce.

One option available, if your spouse is being evasive, is to apply to the court for an order for alternate service so that he/she can be served by another means than papers being handed over directly.

However, an evasive spouse can create delays—and for the divorce to proceed, you will need to provide evidence that you did everything possible to try to locate your errant spouse and fulfill your legal duties.

It is advisable to keep a record of every action you took, including online searches, calls you make to locate your spouse, contact with friends and relatives to find his/her whereabouts, and placing an ad in a popular local newspaper in the city or town where your spouse was last located.

What if my spouse and I disagree on the terms of divorce or separation?

Even if two spouses agree on the need for a divorce and both give their consent, some disagreement on the terms of a divorce settlement is quite normal. This is usually called a contested divorce in BC and must be handled by the Supreme Court.

Although disagreements may add delays and expense to divorce cases, most cases are settled without the need for litigation and a trial. The main contentious issues in divorces are:

• Property/debt division
• Child custody
• Parenting
• Child support
• Spousal support

These matters may be resolved through alternative dispute resolution methods, such as mediation, arbitration, or collaboration between lawyers. Generally, the more contested issues there are, the greater the requirement for legal assistance and the greater the delays to the divorce being granted.

What to do if the judge does not grant your divorce?

The judge will not reject your application for a divorce simply because your spouse does not consent to the divorce but there may be other reasons for not granting it. This can create stress and delays for the party that is pushing for a divorce.

In this situation, you should try to understand why the court has made the decision before considering your next move. You have the following options:

• Correct any mistakes or oversights and reapply for a divorce: if there were procedural errors, you may be able to address the oversights or errors and reapply for a divorce.
• Seek legal advice: a consultation with an experienced family lawyer will shed light on the legal options available and can advise you how to achieve success next time with your divorce application if necessary.
• Separation: exploring and drafting a separation agreement may achieve many of the same goals as a divorce.

Your options will depend on your precise circumstances, so it is important to discuss why your divorce was not granted with an experienced divorce lawyer before taking your next steps.

If you are considering getting a divorce without your spouse’s consent in the Langley area of British Columbia, DSG Family Law offers a free initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.