Can You Divorce in Alberta If You Married Outside Canada?

Many people in Alberta married in another country. Now that the relationship has ended, the question is whether an Alberta court can end the marriage and what that takes.

The short answer is that where you married is not what decides it. How long you have lived in Alberta is the main test, and the paperwork has to be handled carefully if your spouse lives abroad.

This article covers the law of Alberta.

The residence rule comes first

Under the Divorce Act, a court in a province can hear a divorce proceeding if either spouse has been habitually resident in that province for at least one year immediately before the proceeding began. This applies whether the marriage took place in Canada or abroad, and whether the other spouse lives in Alberta or abroad.

Alberta.ca puts it the same way: if you were married outside Canada, you can file for divorce in Alberta if you or your spouse has lived in Alberta for one year.

There is one exception for timing. If divorce proceedings are started in two provinces on different days and both courts have jurisdiction, the court where the proceeding was commenced first has exclusive jurisdiction. If your spouse may have started a case elsewhere in Canada, get advice quickly.

Is the foreign marriage recognized, and what proof is needed

Whether a particular foreign marriage is valid and recognized in Alberta depends on the facts, including where and how you married. This is worth confirming with a lawyer before you file, especially if the marriage was religious only, took place long ago, or was celebrated in a country where records are hard to obtain.

The Court of King's Bench divorce instructions deal with proof of marriage and with foreign marriage certificates. Check the Court's divorce forms page for the current version of the forms and instructions. If your certificate is not in English or French, ask the Court or a lawyer what translation is required before you start gathering documents.

• Your marriage certificate or other official record of the marriage
• Any translation the current instructions require
• Proof of how long you have lived in Alberta
• The date you and your spouse separated
• Your spouse's current address, in or outside Alberta

Grounds and timing

The only ground for divorce is the breakdown of the marriage. It is established if the spouses have lived separate and apart for at least one year immediately before the divorce is determined, or if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

You can start the divorce before the year of separation has passed, but judgment cannot be given until the spouses have lived apart for a year. Getting back together briefly does not necessarily restart the clock: a separation period is not interrupted if the spouses resume cohabitation for not more than 90 days in total with reconciliation as the primary purpose.

Starting the case and serving a spouse abroad

A divorce under the Divorce Act in Alberta starts by filing a Statement of Claim for Divorce (Form FL-1) in the Court of King's Bench and serving it. The parties must be spouses or former spouses of one another unless the Court orders otherwise.

The claim must be served by leaving a copy with the individual being served, not with their lawyer, unless the Court orders otherwise. The person who serves must be someone other than the plaintiff. Proof of service must include a picture of the individual served, unless the Court orders otherwise.

If your spouse lives outside Alberta, the Alberta Rules of Court have further rules on service outside Alberta and on service under the Hague Convention in a Contracting State. The real and substantial connection rule does not apply to service of a divorce claim. How long service abroad takes, and which method works, depends on the country, so get advice before you pay for or attempt it.

Response deadlines and next steps

The time for your spouse to respond is counted from service of the Statement of Claim.

A spouse who opposes the claim files a Statement of Defence (Form FL-4). A spouse who wants notice but does not oppose files a Demand for Notice (Form 13). If neither is filed, the plaintiff may ask for the defendant to be noted in default.

• Confirm you meet the one-year residence rule.
• Collect your marriage proof and ask about any translation.
• Find your spouse's address and plan service.
• If you have dependent children, take the Parenting After Separation course.
• Speak with a lawyer if the marriage's validity, children or property across countries are in question.

Frequently asked questions