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When should a “do-it-yourself joint divorce” be considered?

The “do it yourself divorce” offered on this site should be considered when you have settled all of the outstanding issues relating to your divorce, and wish to have the Court render a judgment of divorce that incorporates what you have agreed to.

What are the advantages of a joint application?

A joint motion does not have to be served on the other party and thus saves the cost of using a bailiff.

A joint motion does not require a notice of presentation.

An ordinary motion for divorce must be presented to the Court no earlier than 30 days subsequent to the date of its issuance. On the date of presentation the parties either proceed before the Court to obtain a judgment of divorce by making their evidence orally in front of the judge if the file is then ready, or they may ask that the file be referred for judgment and then, or shortly after if the file is not yet complete, deposit all of the necessary documentation.

If, however, you proceed by joint application there is no need to present your request to the Court by way of notice of presentation at least 30 days subsequent to the date of issuance of the joint application. You simply issue the joint application without any notice, and attach all of necessary documentation comprised of the substantiating affidavits, the exhibits, Child Support Determination Form (if there is child support payable, article 827.5 declaration required by the Minister of Revenue for the collection of Child and/or Spousal Support), and a draft judgment, to complete the record so that the Court has everything that it needs to render a judgment of divorce.

The Court then processes your file, and assuming that everything is done properly, both parties should receive the divorce judgment in the mail about three months later without the necessity of having to appear in Court.  

When should a legal advisor be consulted?

A “do-it-yourself divorce” requires the full cooperation and agreement of both parties and is not meant for situations where there are financial or custody issues that are unresolved. In these cases a legal advisor should be consulted.

A legal advisor should also be consulted if you are not fully certain about your rights and obligations. To proceed successfully on a joint application both parties must be able to assess and be aware of the implications of the agreement that is to form the basis of the divorce judgment requested.  

Pertinent provisions of law

 The Divorce Act, 1985

Grounds for divorce

Sec. 8(2)

(Marriage breakdown): “Breakdown of a marriage is established only if: a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; [ …]”

The Code of Civil Procedure  

Divorce application

Art. 822

“Spouses who apply jointly […] for divorce, settling the consequences thereof in a draft agreement which they submit to the court for approval, must file at the office of the court a declaration signed by each of them […].”

Draft agreement

Art 822.1

“The draft agreement is dated and signed by the spouses. It contains a full settlement of the consequences […] of their divorce and indicates, if such is the case, the person entrusted with the liquidation of the matrimonial regime. The draft agreement also settles the situation of the spouses and that of the children, if any, during the proceedings; it also serves as a provisional covenant unless, to their declaration, the spouses annex such a covenant, dated and signed by them, bearing on the various points that may be subject of provisional measures.”

The judge’s role

Art 822.2		“The judge presiding at court may, before examining the final draft agreement and after ascertaining the admissibility of the application, direct that the clauses of the provisional covenant which appear to him to be contrary to the interests of the children be deleted or amended; The judge may also, if he considers it necessary to verify that the spouses truly consent, convene and hear them, even separately in the presence of their attorneys, if such is the case;”
Art 822.3		“if the judge presiding at court finds that the draft agreement presented to him does not sufficiently preserve the interests of the children or of either spouse, he may dismiss the application for […] divorce or adjourn his decision until an amended draft agreement is presented.”
Art 822.4		“The application […] for divorce lapses if the spouses omit to present an amended draft agreement within three (3) months from the order of adjournment, unless the court extends the time prescribed, on the joint motion of the parties. The application also lapses if either of the spouses discontinues the application.”
Art 825.5		“When granting […] divorce following a joint application accompanied with a draft agreement, the court, by its judgment, confirms the agreement.”

Determination of child support

Art 825.8

“The government, by regulation, shall establish standards for the determination of the child support payments to be made by a parent, on the basis of the basic parental contribution determined in respect of the child, of the child care expenses, post-secondary education expenses and special expenses relating to the child and of the parties’ custodial arrangement in respect of the child. The government shall prescribe the use of a form and of a related table determining, on the basis of the parents’ disposable income and the number of the children, the basic parental contribution, as well as the production of evidentiary documents.”

Child Support applications

Art 825.9		“No application relating to child support may be heard unless it is accompanied by the form prescribed for the determination of child support payments, duly completed by the plaintiff, and by the prescribed documents.”
Art 825.11		“The parents may produce the prescribed form and prescribed documents jointly. If they do they are exempted from service requirements.”
Art 825.13		“The support to be provided to a child is determined without regard to support claimed by a parent of the child for himself. A judgment granting support to a child and to a parent of the child must state separately the amount of support to be provided to each.”
Art 825.14		“Parents who make a private agreement stipulating a level of child support that departs from the level of support which would be required to be provided under the rules for the determination of child support payments must state precisely, in their agreement, the reasons for such departure.”

Support applications generally

Art 827.5		“No application relating to an obligation of support may be heard unless it is accompanied by a sworn statement by the plaintiff containing the information prescribed by regulation. […] Moreover, no ruling may be made on an agreement relating to an obligation of support submitted by the parties unless the sworn statement referred to in the first paragraph has been filed by each of the parties at the office of the court. […]
Art 827.7		“Any party to an agreement relating to an obligation of support submitted in connection with an application governed by this Title must, where applicable, declare that the fact that the party is a recipient under a last resort financial assistance program or received benefits under such a program during the period covered by the agreement.”

Rules of Practice of the Superior Court

Setting up a legal proceeding  

Rule 5

“Every proceeding shall be legibly written on one side only of a good quality paper measuring 21.25 cm x 35 cm (8 1/2 x 14 inches); the nature and object of the proceeding shall be indicated on the back, with the record number and the names of the parties, the party filing it, as well as the name, address, postal code, telephone number and computer code of his attorney. Every proceeding introductive of suit shall indicate the name, address and postal code of the parties. […] If a party is not represented by an attorney […] the party shall sign the proceeding personally. […]”

Rules of Practice of the Superior Court in Family Matters  

Involvement of Youth Protection

Rule 18

“Child custody and tutorship: A party who applies for custody of a child or tutorship to a child must attest that the child is not the object of a court nor a pending case before a court decision to of an agreement with the Director of Youth Protection, or, if such is the case, must give the particulars of such decision or pending case to agreement.”

Attestation of birth

Rule 22

“Attestation of birth: In every application for divorce, and attestation of birth for each spouse, drawn up in accordance with Form II, must be enclosed with the inscription for proof and hearing, or, in the case of a joint application, with the declaration. A case may not be inscribed to a declaration filed without such attestations. The attestation shall be attached to the copy of the judgment that is sent to the Registrar of Civil Status.”

Birth certificates

Rule 23

“Birth certificates: Providing children’s birth certificates as evidence is not required unless their legitimacy is in dispute. Similarly, photocopies of the parties’ birth certificates are sufficient.”

Joint application

Rule 25

“Joint application: All exhibits shall be filed with the court office at the same time as the joint application.”

Consent to Judgment  

Rule 29

“Consent to draft agreement: The consent or draft agreement of the parties or their affidavits for judgment shall describe each party’s financial resources and situation, unless they have completed and submitted a sworn financial statement in accordance with Form III or, as the case may be, with the form for fixing child support”