The divorces that feature in the media or the movies are often hotly contested, involving a lengthy court battle.
However, the vast majority of divorces in Alberta do not follow that trajectory. They are settled without court intervention until the final divorce order is issued. That does not necessarily mean that the divorce is uncontested—although many divorces are resolved by mutual consent and with no arguments about the separation terms.
In many contested divorces, the couples resolve their differences through alternative dispute resolution methods rather than litigation.
Let us look at the main differences between contested and uncontested divorces in Alberta, so that you understand the options and what to expect if you and your spouse separate.
What is an uncontested divorce?
An uncontested divorce is an amicable divorce where the spouses agree on the decision to end the marriage and all of the major issues related to the separation, including:
- The division of marital property and debts
- Child custody and parenting arrangements (if applicable)
- Child support (if applicable)
- Spousal support
Couples can apply jointly for an uncontested divorce in Alberta if both spouses agree and there are no children or support, custody or property division issues involved. This is a streamlined version of the standard divorce procedure. More standardly, one spouse files for divorce, and papers are served on the other spouse, who has the right to respond.
Generally, the ground for divorce cited in uncontested divorces is irreconcilable differences leading to separation for at least one year (no-fault divorce).
Main features of an uncontested divorce
- Couples agree to divorce and see eye to eye on all of the major terms of separation.
- The divorce is generally faster (3 to 6 months) and less expensive than a contested divorce.
- Minimal court intervention is required.
- Couples separate for a minimum of one year, as is required by law for no-fault divorces.
- No court appearance(s) may be required.
- Less stress and emotional upheaval for all parties.
What is a contested divorce?
In contested divorces, the spouses do not agree on all of the aspects of the divorce. The disagreement could be related to the need to get a divorce in the first place, the reasons for doing so, or the terms of separation.
This does not necessarily mean that the couple will end up at trial—and they very rarely do.
In contested divorces, however, court appearances are necessary and securing legal representation becomes more important. If disputes cannot be resolved through collaboration, negotiation or mediation, a trial before a judge may be required.
Sometimes, couples who agree on all matters at the beginning of the divorce process start to disagree and disputes arise. An uncontested divorce can, therefore, evolve into a contested divorce.
Main features of an uncontested divorce
- Disagreement on one or more major issue.
- Disputes often require legal intervention to resolve (higher legal costs).
- Alternative dispute resolution methods are common, such as collaboration between lawyers, negotiation, and mediation.
- Court involvement is necessary, with court hearings before a judge, who can make temporary or permanent orders.
- Time-consuming, with divorces usually taking 6-12 months or longer to finalize.
- More stressful and disruptive for all parties concerned.
What are the main differences between uncontested and contested divorces in Alberta?
The main differences between contested and uncontested divorces should now be apparent but below is a good summary:
- Agreement: in uncontested divorces, spouses agree on all matters, while in contested divorces, there are disagreements and, potentially, disputes.
- Simplicity: uncontested divorces are usually more straightforward.
- Timelines: uncontested divorces are generally quicker (a few months) compared to contested divorces (many months or up to a year or more).
- Expense: uncontested divorces require less legal input and court time, reducing costs compared with contested divorces.
- Formality: contested divorces must follow formal court procedures, while uncontested divorces may be resolved informally without court appearances.
How can you get an uncontested divorce in Alberta?
If you and your spouse have separated amicably, have no children, and agree on property division and support matters, you can likely proceed with an uncontested divorce in Alberta.
You must first meet the residency requirement, i.e., one spouse must have resided in the province for at least one year immediately before filing for divorce. You will also need to separate for at least 12 months before a divorce will be granted, though you can file the paperwork at any time before that.
For many divorcing couples, the non-adversarial uncontested divorce approach is preferable, saving time, money, and stress. But whether the divorce remains uncontested will depend largely on how well the spouses communicate during the settlement process and the quality of the advice received from those around them.
Even in uncontested divorces, lawyers may be required to draft agreements or to provide legal advice. This can protect the spouses’ legal rights and ensure that any agreements are enforceable.
The rise of no-fault divorces in Canada
No-fault divorces are divorces where no blame is apportioned to either spouse for the breakdown of a marriage. Neither spouse needs to prove the fault of the other spouse and, instead, the ground for divorce is simply that the marriage is irretrievably broken. After 12 months or more of separation, a divorce can be granted under Canadian law.
Compare this with traditional “fault divorces”, which are often adversarial and take up precious court time. Although such divorces are still permitted in Canada—on the grounds of adultery or cruelty—the trend away from having to prove fault in marriage breakdowns is continuing. People will always disagree during relationship breakups but perhaps, one day, fault divorces may not be permitted at all in Canada, encouraging more amicable and uncontested divorces.
Is an uncontested divorce right for you?
An uncontested divorce may be right for you and your spouse if you have parted on amicable terms, have no children, agree on all of the major aspects of the divorce, and are prepared to sign a binding legal agreement.
Even with an uncontested divorce, spouses may want to check with a divorce lawyer that the proposed agreement is legally binding, especially if there are dependent children from the marriage.
If you live in the Calgary area and need assistance with a divorce, the experienced lawyers at Jennings Family Law can help you. Call (403) 316-0138 to request a confidential consultation, contact us directly online, or email Warren Jennings directly at warren@jenningsfamilylaw.com.
