Grounds for Divorce in Alberta Under the Divorce Act

If you are separating, you may wonder whether you have to prove your spouse did something wrong. The federal Divorce Act has one ground, and it is proven in one of three ways.

Knowing which route fits you helps you plan your timing and your paperwork. This article explains each one in plain language.

This article covers the law of Alberta.

The single ground: breakdown of the marriage

A court may grant a divorce on application by either or both spouses on the single ground that the marriage has broken down. Breakdown is established only in the three ways described below. Before any of this, one spouse must have been habitually resident in Alberta for at least one year before the proceeding starts.

Only one spouse needs to meet the one-year residence test. The Divorce Act uses the words 'habitually resident', and the Court's joint-divorce instructions put it as one of you having lived in Alberta for one full year before filing. Different tests apply to support or parenting orders sought on their own after a divorce, and to some spouses who were married in a Canadian province but do not live in Canada.

Separation for one year

You must have lived separate and apart for at least one year immediately before the divorce is decided, and have been living apart when the proceeding started. You can start the divorce early, but you cannot ask for the Divorce Judgment until the year has passed.

• Spouses can be separated under one roof only if they are in fact living apart, which is a question of fact for the court.
• The year is not interrupted if you resumed living together for periods totalling no more than ninety days with reconciliation as the main purpose.
• The period is also not interrupted only because one spouse became incapable of forming the intention to stay apart, if the separation would probably have continued.

Adultery

Breakdown can be shown if the respondent has committed adultery since the marriage. You do not have to wait a year first. The Court's desk-divorce instructions note that in most cases the other spouse must be willing to sign an affidavit admitting it.

Physical or mental cruelty

The third way is that the respondent has treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. As with adultery, no year of separation is needed first.

Starting the claim and when the divorce takes effect

The Court of King's Bench of Alberta has sole jurisdiction over divorce, 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. Spouses who agree can apply together using the Joint Statement of Claim for Divorce, Form FL-08, and no service on a defendant is needed.

• If the other spouse does not respond, the plaintiff uses Noting in Default as part of the desk divorce package, and the court decides the divorce on paper without oral evidence.
• A served spouse who wants to contest has 20 days if served in Alberta, 1 month if served elsewhere in Canada, and 2 months if served outside Canada.
• If there are dependent children, the documents you file add the Child Support Data Sheet and a Notice of Mandatory Seminar, and the court must be satisfied that reasonable arrangements have been made for the children's support.
• The uncontested divorce packages do not deal with property division, which uses a different form.

The Court's instructions say the plaintiff cannot serve the Statement of Claim personally, that a third party must do it, and that the Court strongly recommends hiring a process server. The claim must be served within one year after it is filed, although the Court can extend that time on an application filed before the year runs out.

A divorce takes effect on the thirty-first day after the day the judgment granting it is rendered, whichever ground is used. A court can make it take effect earlier only if it finds special circumstances and the spouses agree and undertake that no appeal will be taken, and a pending appeal can delay it. In Alberta, after the Divorce Judgment is signed, you wait 31 days and then request the Certificate of Divorce through the online request form on the Court of King's Bench website. Once a divorce takes effect, it has legal effect throughout Canada.

Which ground fits, and what to do next

Many people choose separation because it does not depend on proving fault. How the choice applies to you depends on your situation, and a lawyer can help you weigh the options if timing, safety or evidence is a concern.

• Write down the date you began living separate and apart.
• Note any periods of reconciliation and their length.
• Decide whether you need to rely on adultery or cruelty.
• Gather your marriage details and residence history.
• Speak with a lawyer before alleging adultery or cruelty.

Frequently asked questions