What is an unopposed divorce and the consent paper?

As the name suggests an unopposed divorce is where both parties have managed to reach an agreement on not only the divorce but the consequences of the divorce, that being the split of the matrimonial estate. While it can be taken into consideration the matrimonial property regime need not be strictly complied with. This is due to the fact that the split in the matrimonial estate is with the consent of the parties. As discussed in our previous article rights can be waived (abandoned) by a party.

The consent of the parties is recorded in what is known as the consent paper, or settlement agreement. Section 7 of the Divorce Act provides as follows:

A court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by one party to the other.

What can be regulated by the consent paper? The following list is not conclusive of all aspects:-

1. Custody and maintenance of any minor children (please note that when minor children are involved the Family Advocate will play a part);

1. Visitation rights for the spouse who does not have primary residence with any minor children;

1. Maintenance for any spouse;

1. What will happen to any movable property, including motor vehicles;

1. What will happen to any immovable property;

1. Sharing in pension funds, annuity funds, bank accounts etc.; and

1. Any further aspect that the parties deem necessary to regulate.

It goes without saying that an unopposed divorce is the most favourable approach. If however the parties can agree on the divorce but not the split in the matrimonial estate or they do not wish to abandon any rights under an antenuptial contract or accrual then the two issues, the divorce and the split in the matrimonial estate, can be separated and heard separately. In this instance, the parties would be granted a decree of divorce but will have to argue the split in the matrimonial estate at a later date.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

Before we examine an opposed divorce our next article will deal with interim relief in matrimonial matters. In instances when parties cannot agree on issues dealt with in the consent paper, it may be necessary to consider the interim relief before instituting an action for divorce.

For more information please visit our unopposed divorce page.