Frequently Asked Questions
Q How long does it take to get a divorce?
A An uncontested divorce (where there are no disputes about custody, support or division of property) will take about three months from start to finish. If your spouse lives outside of B.C. it will take slightly longer. You will not have to make any court appearances, as uncontested divorces are now handled as "over the counter" proceedings. All that will be required of you will be two brief meetings with your lawyer to sign certain necessary documents; everything else is handled by us.
Q If I am separated, can I date someone else before I get my divorce?
A Yes. However, we always advise our clients to be discreet in any new relationship they may enter into before there is a final resolution of matters arising from a marriage breakdown. Where there are children, the introduction of a new partner is a sensitive matter which could have an impact on a custody decision. Also, in the emotional turbulence which is an inevitable part of a divorce proceeding, the presence of a new partner can inflame emotions and aggravate hurt feelings, making it more difficult to settle matters out of court.
Q If I leave the family home, will I be accused of abandonment or lose my right to share in family assets?
A No. Divorce is essentially a "no-fault" procedure, and the conduct of a spouse is not to be considered by the court unless the conduct relates to the ability of a spouse to exercise responsibility for a child. Family assets will be divided without assessment of blame for the breakdown of the marriage. However, as a practical matter, any action which leaves the other spouse in possession of the family assets or children of the marriage gives that spouse a tactical advantage in the proceedings which may follow: the old adage that "possession is 9/10ths of the law" certainly applies in a family law context.
Q What about mediation?
A Mediation is a process where a neutral third party assists the spouses in reaching an agreement on matters arising from the breakdown of the marriage. A mediator is not a judge and does not decide how matters should be settled, and can not give legal advice to either party. Mediation can be a good way to resolve a family law dispute, and is being promoted by the judicial system as an alternative to court proceedings. However, mediation can only be successful where both parties are willing to compromise in order to reach an agreement. Fred C. Lowther is qualified and experienced to act as a mediator in family disputes.
Q What about the new "shared parenting" changes to the Divorce Act?
A In November, 1998 a joint committee of Parliament released a lengthy report entitled "For the Sake of the Children" recommending changes to the custody provisions of the Divorce Act. These recommendations if carried out would substantially alter the manner in which custody and access decisions are made across Canada. The report recommended that the Divorce Act be amended to do away with the concept of "custody" and provide for, among other things, a requirement that upon a divorce, parents would have to create a "shared parenting plan" which would provide for the sharing of the responsibility for raising children of the marriage.
These recommendations have not become the law and are not expected to become the law in the near future. However, we recommend that parties give thought to the benefits of a shared parenting plan upon a separation as an alternative to the more traditional, and certainly more destructive, custody dispute.
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