How Long Must You Be Separated Before Divorce in New Brunswick?

Many people ask how soon they can be divorced once the relationship ends. The answer comes from the federal Divorce Act, which applies in New Brunswick as it does across Canada.

The rule is simple to state but raises practical questions: when did you actually separate, does living in the same house count, and what if you tried to patch things up? This article covers each of them.

This article covers the law of New Brunswick.

The one-year rule

A court may grant a divorce on the ground that the marriage has broken down. Breakdown is established if the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is decided.

The wording matters. The year must run up to the time of the decision, not just at some point in the past. How this fits the timing of your own case depends on your situation, so it is worth confirming with a lawyer.

Ways around the wait

The one-year period is not the only route. Breakdown can also be established, without the wait, where the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

These grounds depend on proof and on the facts, so many people still rely on the separation year. A lawyer can explain whether an exception realistically fits your situation.

How a divorce is filed in New Brunswick

Divorce proceedings in New Brunswick are in the Court of King's Bench, Family Division, using Rule 72 forms. Spouses who agree may file together using Form 72B, the Joint Petition for Divorce, rather than one spouse filing Form 72A and serving the other with a Notice of Petition (72C).

If the other spouse disagrees, the Rule 72 forms provide for an Answer (72D), Answer and Counter-Petition (72F), Notice of Intent to Defend (72I) and a Reply (72E); a Request for Divorce (72K) and Divorce Judgment (72M/72N) follow, then a Certificate of Divorce (72O).

Can you be separated under one roof?

Yes, it can be possible. Spouses are deemed to have lived separate and apart for any period during which they lived apart, and the Act's wording also requires that at least one of them had the intention to live separate and apart. So the clock can run even if you shared a home, subject to proof.

The full statutory wording should be confirmed for your case. Evidence is what usually makes the difference. Things that may help show separation include:

• Sleeping in separate bedrooms.
• Handling meals, laundry and finances separately.
• Telling family, friends or others that the relationship has ended.
• Written messages or notes stating that one of you intended to separate.
• Changing your address on documents, where that is possible.

When does the clock start, and what if you reconcile?

The clock runs from the period during which you lived apart with at least one spouse intending to separate. That is why a clear, provable date is valuable.

Trying again does not necessarily wipe out the time already counted. The separation period is not considered interrupted or terminated if the spouses resume cohabitation for a period of not more than ninety days with reconciliation as its primary purpose. A longer period, or one with a different purpose, may be treated differently, so get advice if this has happened.

What else matters, and what to do next

Separation is not the only requirement. A court in a province can hear a divorce if either spouse has been habitually resident there for at least one year immediately before the proceeding starts. If there are children, the court must be satisfied that reasonable arrangements have been made for their support.

Your spouse does not need to agree. Nothing in the one-year ground makes the other spouse's signature or agreement a condition.

The court also has a duty to consider the possibility of reconciliation. 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.

Property is a separate question from the divorce itself. An application for division under the Marital Property Act must generally be made within sixty days after a spouse ceases to be a spouse by reason of a divorce or declaration of nullity, though the Court can extend the time where a person lacked knowledge or was prevented by circumstances beyond their control.

• Write down the date you separated and who decided it.
• Keep records showing how you lived apart, especially if you share a home.
• Note any attempt at reconciliation and how long it lasted.
• Confirm your New Brunswick residence period.
• Speak with a lawyer before you file to confirm timing and any exception.

Frequently asked questions