Filing for Divorce in Alberta Before One Year of Separation

You separated recently, and someone has told you that you must wait a year to divorce. The answer is a little more nuanced than that. The year matters, but it matters at a particular point in the process.

This article explains what you can do early, what has to wait, and when adultery or cruelty may be used instead of the one-year separation. Your facts matter a great deal here, so a lawyer can confirm how this applies to you.

This article covers the law of Alberta.

What the one-year rule actually requires

In Alberta, the only ground for divorce is a breakdown of the marriage. One way to prove it is that you and your spouse have lived separate and apart for at least one year immediately before the divorce is decided, and were living separate and apart when the proceeding started.

So the year is measured up to the time the divorce is decided, not necessarily up to the day you file. You do need to be living apart when you start.

Starting before the year is up

A spouse who relies on one-year separation can start the divorce before the year is up, but cannot ask for the Divorce Judgment until the year has passed. That fits the wording of the Divorce Act, which requires the year to be complete when the divorce is determined.

Starting early can let you move paperwork along, such as serving your spouse. A claim must be served within one year after the date it is filed, unless the Court extends the time on an application made before that year runs out. Separately, you must meet the residence test: one spouse must have been habitually resident in Alberta for at least one year immediately before the proceeding starts.

The Court of King's Bench of Alberta has sole jurisdiction over divorce in Alberta, and the Court of Justice cannot grant one. A one-spouse divorce starts with the Statement of Claim for Divorce, Form FL-01, under Rule 12.7 of the Alberta Rules of Court. If you and your spouse agree, the application can instead be made by both of you, using the Joint Statement of Claim for Divorce, Form FL-08.

In a one-spouse divorce, the Court's instructions say you cannot serve the Statement of Claim personally. A third party must do it, and the Court strongly recommends a process server, who will supply a sworn Affidavit of Service. In a joint divorce both spouses are applicants, so no service on a defendant is needed. A served spouse who wants to contest has 20 days to respond if served in Alberta, 1 month if served elsewhere in Canada, and 2 months if served outside Canada.

Adultery and cruelty as alternatives

Breakdown can also be established if the other spouse has committed adultery since the marriage, or has treated you with physical or mental cruelty that makes continued cohabitation intolerable. These grounds are alternatives to the one-year separation, and you are not required to wait a year before relying on them.

There are practical limits. The Court's desk-divorce instructions note that for adultery, the other spouse must in most cases be willing to sign an affidavit admitting it. Cruelty must be of a kind that makes continuing to live together intolerable. Because these grounds depend on proof and on your spouse's response, many people still choose to rely on separation. A lawyer can help you weigh that choice.

Living apart under one roof and brief reconciliations

• You can be separated while living in the same home only if you are in fact living apart. That is a question of fact for the court.
• Spouses are treated as living separate and apart for any period when they lived apart and either intended to live separate and apart.
• The separation period is not interrupted if you resumed living together for a period, or periods totalling, no more than ninety days with reconciliation as the primary purpose.
• The period is also not interrupted only because one spouse became incapable of forming the intention to continue living apart, if the court finds the separation would probably have continued.

What to do next

Once the Divorce Judgment is signed in Alberta, you wait 31 days and then request the Certificate of Divorce through the online request form on the Court of King's Bench website.

• Write down the date you began living separate and apart, and any times you lived together again.
• Confirm that one of you has lived in Alberta for at least one year.
• Decide whether you will rely on separation, adultery or cruelty, and get advice about the evidence each would need.
• Gather documents about children, support and property, because the forms differ depending on what is settled.
• Check the current court fee and filing method with the Court before you file.

Frequently asked questions