Not every unhappy marriage needs to end with a divorce. There is an abundance of divorce alternatives available to Vancouver couples looking for a more sensible split up.
At Guardian Law, we view divorce as a last resort instead of rushing our clients into the court system. We aim to ensure that both parties get their say throughout the process. That way, you can come to an agreement that is less exhausting emotionally and less taxing on your assets.
How Divorce Typically Works
The standard way to end a marriage in Vancouver is via a court process. Each spouse will have their own family lawyer who presents their case to the judge. The trial will consider critical matters such as property division, spousal support, and child custody. During the divorce process, the two family lawyers seldom speak to each other directly. Their focus is typically on extracting the best possible outcome for their client without causing too much collateral damage.
Why Should You Consider Alternative Dispute Resolution?
In general, divorce cases involving family lawyers are quite time-consuming and therefore pricy. Litigation takes several months and sometimes years to conclude. Meanwhile, if both parties are agreeable, a resolution strategy like mediation can be much more efficient.
Taking your divorce into court means you completely relinquish control over the resolution. You might not be able to negotiate terms that both parties find favourable. The courts tend to emphasize a “one-size-fits-all” solution.
Divorces also tend to be messy, as with many family law issues. Once you take your case to court, you have entered the public sphere. Most people prioritize their privacy. Not to mention, the effect of such a public disagreement can be devastating for your children as well. If you want to preserve family stability, it’s usually best to resolve your family law issues out of the court system.
5 Potential Alternatives To Divorce
As you know, divorce is hardly the only option. We’ve identified 5 split-up options for couples in a marriage or common-law relationship to choose from, including:
- Separation: Couples can separate and live apart without getting divorced. In this case, they must still make arrangements regarding the division of property, spousal and child support, and custody of children.
- Mediation: Mediation is a process where an independent third party helps couples reach agreements about issues related to their separation, usually in the aforementioned division of property and custody.
- Collaborative law: In a collaborative divorce, couples work with a team of professionals, including lawyers and mental health professionals, to reach an agreement about their separation.
- Annulment: Annulling your marriage is a rare event in which a judge declares a marriage null and void. It differs from a divorce in that it treats the marriage as if it never existed.
- Judicial separation: In this scenario, the court will order a separation that allows couples to live apart, but not remarry. It is similar to divorce but does not dissolve the marriage.
Make sure that you receive independent legal advice for each of these scenarios should you consider them. Don’t just rely on the information you accumulate on the internet.
How Separation Works
In Canada, most couples live separately first before obtaining a divorce. In fact, it’s uncommon for couples to be permitted to divorce immediately unless there is some compelling reason like spousal abuse. That said, not all types of separation are identical. There is a difference between legal and informal separation.
Legal Separation
Remember that for the division of assets to be valid, you need to obtain a legally binding separation agreement that outlines what belongs to whom and who receives custody at which times. Many couples seek legal separation when their religious beliefs prohibit divorce. Legally speaking, the marriage will not be dissolved. Your title will be “separated” under the eyes of the law.
Informal Separation
During an informal separation, a couple might agree to separate, but avoid going to court at any point. That means that they will agree between themselves on the elements typically decided by a court like property, support payments, and child custody. You can imagine that this type of agreement requires a high degree of trust between the two parties.
How Mediation Works
While mediation is not suited to every couple, it is often the most successful separation tactic in our experience at Guardian Law. During mediation, a third party called a mediator sits down with a couple to help them reach an agreement on every aspect of their separation.
At first, the mediator will talk with each spouse separately and discuss their concerns about the separation and their final objectives. Afterward, the mediator will facilitate communication between the couples and identify the potential solutions to their conundrum. Ideally, mediation helps the couple discover a mutually accepted agreement.
Understand that the mediator’s role is not to foist a solution on either party. They merely help each party explore and understand different possibilities. To smooth communications, they help each party understand the perspectives of the other. Thus, mediation makes it easier for a couple to find common ground and reduces the chance of conflict.
How The Collaborative Divorce Process Works
A collaborative process in divorce is marked by its synergistic approach, where spouses consult lawyers and mental health experts.
Both parties will hire an attorney, but instead of going to court, the parties and their attorneys work together in a series of meetings to reach a mutually acceptable settlement.
Just like mediation, the intent here is to resolve the dispute respectfully. The process will begin with both parties signing a participation agreement where they commit to resolving the dispute without going to court. To expedite the process, the attorneys might choose to bring in financial experts, child psychologists, and other professionals that will help them reach a fair settlement.
Notice just how much more open this kind of process is when it comes to finding a solution that’s tailor-made for you.
Should your collaborative divorce lawyer fail to reach an agreement, then you will need to find a new lawyer to pursue the divorce in a court of law.
How Annulment Works
Marriage annulment is a bit of a drastic step. In this scenario, a court declares your marriage completely void – as though it never existed. That means you typically seek an annulment because the marriage was not even valid in the first place. You’ll need to go back and look at the circumstances that led to the marriage. Here are some examples of things that could make a marriage void:
- Lack of Capacity: A court could determine that one or both parties did not have the capacity to agree to the marriage.
- Duress & Fraud: If one party was forced or tricked into the marriage, it can be annulled.
- Consanguinity: There is a degree of consanguinity (relation to your partner) that the law prohibits in marriages.
- Non-consummation: Unfortunately, if one partner is not able to consummate the marriage, then the other can request that the marriage be annulled.
As you can see, there are only a few very specific cases where annulment is justified in court. Therefore, your lawyer should be quite certain that one of them applies should you choose to pursue this route. You’ll need to obtain substantial documentation that one of these conditions applies. Otherwise, your argument will be thrown out of court.
How Judicial Separation Works
Judicial separation is the formal process of separation using a court and is quite similar to legal separation. This removes the necessity of divorce, but it also means that the spouses must split up their property and other responsibilities.
When you commence a judicial separation, one spouse must petition a court and include their grounds for the separation and requests for relief. This is how you sort out things like child custody and support.
The effect of a judicial separation is immediate. But it won’t resolve all your problems. Judicial separation differs from legal separation in that it won’t make any arrangements for property division.
Understand that judicial separation means that you remain legally married. You won’t even have the legal title of being separated either.
Is Divorce Necessary?
After going over all these different alternatives, you should realize that divorce is quite an extreme measure in the grand scheme of things. While separation is not appropriate in all divorce cases, it can be a far more realistic way of getting what you want out of a split. And you’ll be able to move on with your life faster too.
Guardian Law can help you explore all the options relating to divorce and separation issues. Continue reading our blog, or contact us to book a free legal consultation.