The Affidavit of Divorce in Alberta: Who Must Swear It and When

If you are asking for an uncontested divorce in Alberta without going before a judge, your sworn evidence does most of the talking. That evidence is the affidavit that goes in your divorce package.

This article explains who swears it, which form applies, and how the affidavit fits with the rest of your application. Check the Court's current forms and instructions as you prepare it, since forms can be updated from time to time.

This article covers the law of Alberta.

What the affidavit is for

A desk divorce is a request for a divorce judgment without any appearance by the parties or their lawyers. Because nobody speaks to the judge, your written, sworn evidence has to cover what the Court needs to decide.

A desk divorce application consists of a Request for Divorce, a supporting affidavit, and a proposed Divorce Judgment or Divorce Judgment and Corollary Relief Order. If the clerk is satisfied the documents meet the rules and the Court's practice, the clerk places them before the Court.

Who swears it

Which form you use depends on whether you are applying alone or together:

So in a single application, the applicant swears the affidavit. In a joint application, both applicants swear the joint affidavit. A desk divorce can be sought where both parties consent, where the defendant has not filed a defence or demand for notice and has been noted in default, where the Court orders it on application, or where a joint statement of claim was filed and no party has withdrawn.

There is an extra step for some people. A self-represented litigant's consent to a desk divorce must be accompanied by an affidavit of execution. If you are self-represented, check the Court's current instructions for how that affidavit is prepared.

What the Court must be satisfied about

The exact wording of the form guides what you write, and you should follow the current form and its instructions. In general, though, the facts you swear to must support the legal requirements for a divorce. These include:

• The Court has jurisdiction, which generally means either spouse has been habitually resident in Alberta for at least one year immediately before the proceeding started.
• The marriage has broken down, which is shown by living separate and apart for at least one year, or by adultery or cruelty that makes continued cohabitation intolerable.
• There has been no collusion, and reasonable arrangements have been made for the support of any children of the marriage. If child support arrangements are not made, the Court must stay the granting of the divorce until they are.
• Where the divorce is based on adultery or cruelty, the Court must also be satisfied there was no condonation or connivance and must otherwise dismiss the application, unless the public interest is better served by granting the divorce.

An agreement about separation, financial support, property division, parenting time or decision-making is not collusion. Also, spouses can live under the same roof and still be separated, but they must give evidence of the separation.

How it is sworn and what the judge can do

An affidavit is only evidence once it is properly sworn. The steps for swearing it are set by the Court's instructions, so it is worth confirming them with the Court or a lawyer before you sign anything. The Court's instructions set out who may commission an affidavit for a divorce package, so confirm that on the current instructions or with the Court before you book an appointment, rather than relying on a general rule.

Be accurate. Reviewing the paperwork, the Court may render any judgment the parties are entitled to, direct an appearance, require further evidence, direct the applicant to proceed to trial on oral evidence, or make any other order. A hearing is required only if the Court orders it. Gaps or inconsistencies in your affidavit are exactly what could lead to a request for more evidence.

What to do next

• Download the current fillable forms. Handwritten divorce judgments are not accepted.
• Confirm your case suits the uncontested forms: parenting, decision-making and support must be settled, and property division is not dealt with.
• Complete the Desk Divorce Package Checklist. Submissions without it are not accepted for processing.
• If you are an unrepresented applicant, you must provide a stamped envelope addressed to yourself, though the Court allows an email address on the checklist instead.
• Read the affidavit slowly before swearing it, and correct anything that is not true or complete.
• If you are self-represented and you consent to the desk divorce, prepare the affidavit of execution that must accompany your consent.

If dates of separation, residence, children or a spouse's consent are unclear, a lawyer can review your affidavit before you swear it.

Frequently asked questions