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July 16, 2020 Family Law
There are essentially three ways for spouses to end their marriage: joint divorce, divorce by agreement (“on consent”) and contested divorce.
A joint divorce is possible when the parties agree on all of the terms to be settled at the time of divorce. Although a joint divorce is generally the simplest, quickest and least expensive way to end a marriage, it may not be possible for the divorcing spouses to reach an amicable agreement at the outset. Legal divorce proceedings will then be necessary, leading to an amicable settlement if the spouses reach an agreement or to a court judgment at trial should the disagreement persist.
This post aims to explain the characteristics of these three types of divorce and the differences between them.
When the parties have agreed on the essential terms of their divorce, through discussions or with the help of a mediator, they file a joint divorce.
More specifically, to proceed with a joint divorce, the spouses must agree on all the terms, conditions and consequences of their divorce (including child custody and support, spousal support payments and division of the value of property). There must be no point of contention between the spouses. In particular, the spouses must agree on the date they ceased living together. It is important to note that the grounds for divorce must be that the spouse have been living apart for at least a year. Adultery or physical and mental cruelty may not be invoked as grounds for divorce in joint divorce proceedings.
In a joint divorce, both parties are co-applicants instead of being opposing parties (applicant and respondent) as in ordinary divorce proceedings. This means that together, the spouses will ask the court to grant them a divorce, to give effect to the final agreement they have reached and signed and to order all parties to comply with it. The spouses must agree on all the clauses included in the final divorce agreement, which must cover all of the consequences, terms and conditions of the divorce.
Spouses may choose to retain the services of one lawyer (or notary) to draft their divorce agreement and to prepare and file joint divorce proceedings, thereby reducing legal costs for each party. In such a case, the lawyer (or notary) retained by both spouses must advise both parties, and he/she must be loyal and impartial to both parties – he/she cannot favour one party to the expense of the other.
One of the main characteristics of joint divorces is simplicity. A joint application for divorce is drafted at the same time as the final agreement, which includes all the terms, conditions and consequences of the divorce agreed upon by the spouses. In general, the parties will sign the joint application for divorce and the final agreement at the same time.
Because they are generally simple, joint divorces are the most economical way to end a marriage. The proceedings are executed at the lawyer’s (or notary’s) office and neither the parties nor their lawyer (or notary) will have to go to court for the divorce to be granted. The joint application for divorce will go through the judicial process at the court clerk’s office; once the complete record has gone through the mandatory analysis and verification by the clerk and the judge, he or she will sign the draft judgment submitted by the parties.
A few months will elapse between the filing of joint divorce proceedings and the receipt of a divorce judgment.
Joint divorce is a non-contentious procedure, i.e., there is no opposing party and it does not involve an adversarial debate before the court. This is why a notary may advise and act for spouses in joint divorce proceedings: notaries can act in non-contentious (non-litigious) legal proceedings.
Divorce by agreement (“on consent”)
If the parties agree on the terms and conditions of their divorce, they do not have to apply for divorce together in a joint application. They may agree and divorce amicably by filing an ordinary divorce proceeding, instituted by either spouse, in which each party will be represented by his or her own lawyer.
Essentially, a divorce by agreement is possible when the parties, during the proceedings, finally come to an agreement on all the terms, conditions and consequences of their divorce. The spouses enter into a written agreement detailing the terms on which they agreed. This written agreement, also called a “consent”, is submitted to a judge; it can be converted into a judgment to become part of the divorce judgment.
A divorce by agreement requires that one party (the applicant) initiate legal divorce proceedings against the other spouse (the respondent), whether or not they agree on the terms, conditions and consequences of their divorce at the outset. As previously mentioned, the parties may not file a joint application for divorce when one of the spouses is claiming adultery or physical and mental cruelty as the reason for the divorce. In such a case, one spouse must file for divorce.
It is worth noting that instituting legal proceedings against the other spouse in a context where the parties do not agree on the terms, conditions and consequences of their divorce does not prevent them from subsequently reaching an agreement during the course of the proceedings. By entering into an agreement, the parties would ensure that a judge does not decide in a final judgment the outcome of their divorce case. In fact, the vast majority of judicial applications for divorce are settled in negotiations, that is, amicably or by mutual consent of the parties.
Even if divorce proceedings were filed at a time when the parties were in complete disagreement, they always have the option of negotiating and engaging into discussions, through their lawyers, during the proceedings in order to agree on the various points and to draft a final agreement to be approved by the court. This will have the advantage of allowing the spouses to settle among themselves and to avoid costly divorce proceedings.
There are situations, however, where the parties cannot agree on all the terms, conditions and consequences of their divorce, but agree on some of them. In such a case, when one or more points remain a source of disagreement between the parties, they may submit their points of disagreement to the court for judgment, with the understanding that the court may confirm the agreement between the parties on the agreed-upon items (partial agreement). For the remainder, i.e., the items not agreed upon, the court will decide.
In some cases, the parties may disagree on most or all of the issues and the terms, conditions and consequences of the divorce, for example due to high levels of conflict, animosity and/or emotions between the parties and their diametrically opposed positions, which deadlock any settlement. Faced with the impossibility of reaching an agreement, the parties will have to go to trial following which a judge will decide on the terms, conditions and consequences of their divorce in a final judgment.
However, obtaining a trial date for a divorce can take months or even more than a year, and divorce litigation can last several years in some cases. As a result, the parties will often ask the court for a temporary decision on certain issues. Certain issues may require a decision pending the divorce trial. These may pertain to child custody and access rights, child support and/or spousal support payments, the use of the family residence and furniture during the divorce proceedings, to name a few. For example, in a contested divorce, the parties may frequently petition the court before the trial to obtain temporary orders to safeguard their rights in urgent cases (via an application for a safeguard order) or to settle certain non-urgent issues until the divorce (via an application for provisional measures).
In a contested divorce, the parties may submit issues (urgent or non-urgent) to be decided by the court more than once before trial. They are then involved in proceedings that can become complex and result in numerous interventions and vacations in court to have preliminary issues decided, which entails costs that could become very high in some cases.
However, despite these factors, a contested divorce allows the spouses to present their arguments before the court, which will decide the dispute. Questions of fact and law will be brought before a judge of the Superior Court, who will rule on the points on which there is no agreement. The judge will decide the terms, conditions and consequences of the divorce in a judgment, except for the items agreed upon by the parties.
Note that a divorce can be settled out of court amicably at any time, through either an amicable settlement conference or mediation, or if the parties decide to be mutually open and engage in settlement discussions, generally through their lawyers, the spouses may reach an amicable agreement that could prevent a costly, lengthy and complex legal process.
The court will always be available to hear your case if you come to the conclusion that a settlement is impossible, but remember that, as the old saying goes, in many cases, a bad settlement is better than a good trial.
This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.Back to the list of publications - Family Law