Do You Have to Go to Court to Separate in New Brunswick?

Ending a relationship feels like it should come with an official step. In New Brunswick, many people are surprised to learn that separating and getting a divorce are different things. You may be separated for a long time before any court is involved.

This article explains what the law looks at when it asks whether you are separated, when a court becomes necessary, and how agreements can help. It also covers common-law partners, who are in a different position from married spouses.

This article covers the law of New Brunswick.

Separation is mostly about how you live

For divorce purposes, breakdown of the marriage is generally established if spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined. There is an exception: breakdown can also be established without the one-year wait where the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable. Spouses are deemed to have lived apart for any period during which they lived apart, and the Act's wording also requires that at least one of them intended to live separate and apart.

So the legal test points to the way you have lived and your intention, not to a form you filed. It is still wise to write down your separation date and keep supporting records.

When court does become necessary

A divorce is granted by a court. In New Brunswick, divorce proceedings are in the Court of King's Bench, Family Division, using the Rule 72 forms. The Family Division also handles Family Law Act matters such as parenting and support.

Court may also be needed for other issues if you cannot agree. The usual situations are in the table below.

Agreements can avoid a court fight

If you and your spouse can agree, a written domestic contract, such as a separation agreement, must be in writing, signed by the parties to be bound, and witnessed. A valid domestic contract generally prevails over a conflicting provision of the Marital Property Act.

The witnessing rule does not itself make a lawyer mandatory, but independent legal advice matters. The Court may disregard a provision where a spouse signed without independent legal advice and applying it would be inequitable.

Once a divorce proceeding has started, the Divorce Act says the parties are to try to resolve the matters that may be the subject of an order, including through family dispute resolution processes, to the extent appropriate.

Common-law partners are treated differently

A common-law partner is a person who cohabits in a conjugal relationship with another person without being married to them. The Marital Property Act's equal-division rule applies to married spouses, so common-law partners do not get automatic equal division of the home or other property.

Unmarried partners generally rely on unjust enrichment or negotiate a settlement, and living together alone does not create an entitlement to a share. Spousal support can extend to common-law partners who cohabited continuously for at least three years with one substantially dependent on the other, or who are parents of a child and cohabited in a relationship of some permanence.

What to do next

• Write down your separation date and keep related records.
• List your issues: children, support, property, debts and the home.
• Try to reach a written agreement, and get independent legal advice before signing.
• Note any deadlines, such as the sixty-day window for a marital property application after divorce.
• Seek urgent help if you are unsafe; do not wait for a court process.

A lawyer can confirm which steps apply to your situation and whether a court filing is worthwhile now or later.

Frequently asked questions