What Happens If Your Spouse Doesn't Respond to Your Divorce Petition in Manitoba?

You filed a Petition for Divorce, and now your spouse is ignoring it or you cannot find them. It is common to worry that the divorce is stuck. In many cases it is not, because the court process has a way forward when a spouse stays silent.

This article walks through the usual steps in the Court of King's Bench (Family Division) when you have filed a sole petition and no Answer comes back. The rules for Rule 70 forms and procedures can be updated, so confirm the current rule text and forms before you file anything.

This article covers the law of Manitoba.

How long your spouse has to respond

A sole petition is filed on Form 70A. That form tells the person you are divorcing (the respondent) how long they have to file an Answer, and the time depends on where they are served: 20 days if served in Manitoba, 40 days if served elsewhere in Canada or the U.S., and 60 days if served outside those countries.

You may see 30 days quoted online. That is not what Form 70A states, so count from the periods on the form instead.

A respondent who wants to oppose the petition files an Answer on Form 70J. An Answer that also asks for a divorce is called an answer and petition for divorce.

When your spouse cannot be found

The other party must be notified of the application. If a party cannot be found, the court may allow substitutional service, such as putting a notice in a local newspaper.

Whether the court will allow that, and what you need to show about your efforts to find your spouse, depends on the facts. A lawyer can confirm how to ask for it and what proof the court is likely to want.

Going ahead when no Answer is filed

If the respondent files no Answer, you may submit your evidence by affidavit. The judge may then grant the orders or require more evidence in court. Uncontested divorce is excluded from the Triage/Case Management Model, which applies to contested cases.

Some paperwork is required along the way:

• A marriage certificate must be filed as a prerequisite in the Family Division.
• For an uncontested sole petition, you provide three copies of the divorce judgment on Form 70O unless the court orders otherwise.

The filing fee for a petition for divorce is $200. Fees can change, so check the current amount with the court.

What the judge still has to be satisfied about

A silent spouse does not mean an automatic divorce. The judge still looks at the basics before granting it:

• Breakdown of the marriage. This is generally shown by living separate and apart for at least one year immediately before the divorce is determined, and being separated when the proceeding began. The other grounds are adultery or cruelty that makes continued living together intolerable.
• No collusion. If the court finds collusion, it must dismiss the application.
• Child support. The court must be satisfied that reasonable arrangements for support of any children of the marriage have been made, and if not, it must delay the divorce until they are.
• Reconciliation. Before considering the evidence, the court must satisfy itself that reconciliation is not possible, unless that is clearly inappropriate.

You can file before a full year of separation has passed, but the divorce can only be granted on that ground once the year is complete. Short reconciliation attempts totalling no more than ninety days, made with reconciliation as the main purpose, do not interrupt the separation period.

After the judgment: when the divorce takes effect

A divorce takes effect on the thirty-first day after the day the judgment is rendered. In limited cases the court may order it to take effect earlier, but that requires special circumstances and the spouses' agreement not to appeal. That is unlikely to fit a case where one spouse has not responded.

A court officer must, on request, issue a certificate showing the date the divorce took effect. In Manitoba a Certificate of Divorce costs $30. You can order it from the Court of King's Bench centre, by mail or in person, using the court file number from the top right corner of your documents.

What to do next

• Keep proof of when and where your spouse was served, so you can count the 20, 40 or 60 days correctly.
• Gather your marriage certificate and your separation date.
• Write down what you have done to find your spouse, if they cannot be found.
• Set out your child support arrangements, if you have children.
• Check the current Rule 70 text and forms before filing, since details can change.
• Speak with a family lawyer if service, missing spouses or children's arrangements make the case less straightforward.

Frequently asked questions