Divorce Article 5: What is an unopposed divorce and the consent paper?

estate or matrimonial property consequences and related matters. While it can be taken into

consideration, the matrimonial property regime need not be strictly complied

with. This is due to the fact that the split in the matrimonial estate is with

the consent of the parties. As discussed in our previous article rights can be

waived (abandoned) by a party.

The consent (agreement) of the parties is recorded in what

is known as the consent paper, or settlement agreement. Section 7 of the

Divorce Act provides as follows:

A court granting a

decree of divorce may in accordance with a written agreement (the consent paper/settlement

agreement) between the parties make an order with regard to the division of the

assets of the parties or the payment of maintenance by the one party to the

other.

What can be regulated by the consent paper? The

following list is not conclusive of all aspects:-

Custody and

maintenance of any minor children (please note that when minor children

are involved the Family Advocate will play a part);

Visitation

rights for the spouse who does not have primary residence with any minor

children;

Maintenance

for any spouse;

What will

happen to any movable property, including motor vehicles;

What will

happen to any immovable property;

Sharing in

pension funds, annuity funds, bank accounts, etc.; and

Any further

aspect that the parties deem necessary to regulate.

It goes without saying that an unopposed divorce

is the most favorable approach. If however the parties can agree on the

divorce but not the split in the matrimonial estate or they do not wish to

abandon any rights under an antenuptial contract or accrual then the two

issues, the divorce and the split in the matrimonial estate, can be separated

and heard separately. In this instance, the parties would be granted a decree of

divorce but would have to argue the split in the matrimonial estate at a later

date.

Before we examine an opposed divorce our next

article will deal with interim relief in matrimonial matters. In instances when

parties cannot agree on issues dealt with in the consent paper it may be

necessary to consider the interim relief before instituting an action for

divorce or after the action has been launched.

Related Practice Areas: Maintenance & Spousal Support | Child Custody | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.