- The Divorce Act has a single ground for divorce, breakdown of the marriage.
- Breakdown can be shown in only three ways: one year living separate and apart, adultery, or cruelty.
- You can start on the separation ground before the year is up, but you cannot ask for the Divorce Judgment until it has passed.
People often ask whether they need to prove that their spouse did something wrong to get divorced in Alberta. In most cases the answer is no. The law asks you to show that the marriage has broken down, and there are only a few ways to do that.
This article explains the ground for divorce, the three ways to prove it, and what each one involves in practice. It does not cover residency, forms, fees or service of documents, which are separate topics.
This article covers the law of Alberta.
One ground, three ways to prove it
Under the federal Divorce Act, a court may grant a divorce on the application of either or both spouses on a single ground: that the marriage has broken down. Breakdown is not a matter of opinion. The Act says it is established only in three ways.
| Way to prove breakdown | What it means |
|---|---|
| Separation | You have lived separate and apart for at least one year immediately before the divorce is decided, and were living apart when the proceeding started |
| Adultery | The respondent has committed adultery since the marriage |
| Cruelty | The respondent has treated the other spouse with physical or mental cruelty that makes continued living together intolerable |
The adultery and cruelty routes both depend on what the respondent has done, as the Act describes them. How this applies depends on your situation, so it is worth confirming with a lawyer.
What separate and apart means
Spouses are treated as living separate and apart for any period when they lived apart and either of them intended to live separate and apart from the other. Whether a couple is in fact living apart is a question of fact for the court.
Spouses can be separated while still living under one roof, but only if they are in fact living apart. That is a question of fact for the court. How this applies depends on your situation, so it is worth confirming with a lawyer if you are unsure.
Reconciliation and incapacity do not reset the clock
Trying again does not necessarily wipe out the time you have already been separated. 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.
There is a second protection. The period is not interrupted only because one spouse has become incapable of forming or having the intention to continue living separate and apart, as long as it appears to the court that the separation would probably have continued had that spouse not become incapable.
- Up to ninety days in total of living together, aimed at reconciling, is allowed.
- Living together for more than ninety days in total falls outside this protection, so keep a simple record of dates.
- Incapacity of one spouse does not by itself break the separation.
Adultery and cruelty: no year of waiting, but proof matters
Adultery and cruelty are alternatives to the one-year separation. Neither needs a year of separation first, and the spouse who alleges them does not have to wait a year.
The Court of King's Bench of Alberta lists adultery and mental or physical cruelty as grounds in its desk divorce instructions. For adultery, those instructions note that the other spouse must in most cases be willing to sign an affidavit admitting it. If your spouse will not do that, relying on adultery may become harder and a lawyer can explain your options.
Many people choose the separation ground because it does not require anyone to admit or prove wrongdoing. Whether another ground is a sensible choice depends on your facts.
Starting early and the court's role
If you rely on one year of separation, you can start the divorce before the year is up, but you cannot ask for the Divorce Judgment until the year has passed. This matches the Act, which requires the year to be complete when the divorce is decided.
The court also has duties of its own. In a divorce proceeding it must guard against collusion, which in plain terms means spouses cooperating to mislead the court. Be accurate about your dates and your reasons.
What to do next
- Write down the date you and your spouse began living separate and apart.
- Note any periods of living together again, with dates and the reason.
- Decide whether separation, adultery or cruelty is the ground that fits your facts.
- If you are living under one roof, record how your lives are actually separate.
- Speak with a lawyer if the ground is disputed, if you are unsure the year is complete, or if you are considering adultery or cruelty.
Frequently asked questions
Do I have to prove my spouse was at fault to get a divorce in Alberta?
No. The only ground is breakdown of the marriage, and one way to show it is living separate and apart for a year, which does not depend on fault.
Can we be separated while living in the same house?
Yes, but only if you are in fact living apart. That is a question of fact for the court.
Does getting back together for a while restart the one-year period?
Not if you lived together for no more than ninety days in total with reconciliation as the main purpose. Longer periods may raise questions, so get advice.
Do I need to wait a year if I rely on adultery or cruelty?
No. These are alternatives to the one-year separation. For adultery, the other spouse must in most cases be willing to sign an affidavit admitting it, according to the Court's instructions.
Sources
- Divorce Act, s. 8(1) — Justice Laws (federal)
- Court of King's Bench of Alberta – Desk Divorce (no dependent children) instructions — albertacourts.ca
- Divorce Act, ss. 9–11 — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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