What is an uncontested divorce?

As the name suggests an uncontested divorce, also known as an unopposed divorce or no-fault divorce, is where both parties have managed to reach an agreement on not only proceeding to obtain a decree (order) of divorce but also the consequences of the divorce, that being the split of the matrimonial estate, custody of minor children, maintenance and any other relevant aspects. 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 aforementioned is with the consent of the parties. As discussed in our previous article rights can be waived (abandoned) by the parties.

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, primary residence and maintenance of any minor children (please note that when minor children are involved the Family Advocate must be notified even if it’s only to obtain the consent paper approval);

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

  3. Maintenance for any spouse;

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

  5. What will happen to any immovable property;

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

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

It goes without saying that an uncontested 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, this applies to any other aspect such as maintenance or custody equally.

However, it should be noted that even when the parties have consented to all the required matters set out above for obtaining a decree of divorce, it is still a court action and all relevant legislation, Rules of Court and practice directives must be complied with. This can be daunting and nerve-wracking for a party that is not familiar with the legal system and its various processes.

As divorce can be a very emotional procedure a party can unknowingly or unwillingly sacrifice or abandon rights that they are legally entitled to. Due to this, the parties or party should consult with an attorney when they are uncertain of their rights or what they are entitled to when considering an action for divorce.

Due to this Thomson Wilks Inc. offers a set fee option when proceeding with an uncontested divorce. This includes all relevant pleadings (the required paperwork, summons, particulars of claim, consent paper and further matters which requires attention), serving, filing, consultations and appearing at Court for the hearing with an appointed advocate.

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

Should you require any further information please do not hesitate to contact us. Or you can fill in a quick form on our website here.