How to File for Divorce in Prince Edward Island Step by Step

Ending a marriage feels like a huge task, and the paperwork can look worse than it is. Divorce follows an order: confirm you can apply, prove the marriage has broken down, file the right documents, and wait for the court to grant the judgment.

This article walks through that order for Prince Edward Island. It explains the rules in plain words so you know what to expect. It is general information, not advice on your own situation.

This article covers the law of Prince Edward Island.

Step 1: Check that you can apply here

A court in the province can hear your divorce if either spouse has been habitually resident in Prince Edward Island for at least one year immediately before the proceeding starts. Only one spouse needs to meet this test, and the year is counted back from the day the proceeding begins.

There is an exception if divorce proceedings between the same spouses are pending in two courts that each have jurisdiction. The court where the proceeding was started first has exclusive jurisdiction, and the second proceeding is deemed discontinued.

Step 2: Understand the ground for divorce

The only ground for divorce is that the marriage has broken down. The 2021 amendments to the Divorce Act did not change the grounds or how you apply.

Breakdown is established in one of two ways:

• The spouses have lived separate and apart for at least one year immediately before the divorce is determined, and were living apart when the proceeding started.
• The other spouse has committed adultery or treated you with physical or mental cruelty that makes living together intolerable.

You do not have to wait a year to file on the separation ground. You can apply while living apart, but the full year must be complete before the divorce is granted. If you rely on adultery or cruelty, you can seek a divorce without waiting out the year.

What counts as living separate and apart turns on living apart and on the intention of at least one spouse to live separate and apart. A separation is not interrupted or ended if you resume living together for periods totalling no more than ninety days with reconciliation as the primary purpose. Justice Canada says you may live together for up to 90 days, before or after filing, to try to reconcile, and the divorce action can continue as if that time had not occurred. Justice Canada also says couples can be separated while still living under the same roof, and a lawyer can explain how courts assess that.

Step 3: Settle what you can before filing

Justice Canada advises agreeing on child support, parenting arrangements, spousal support and property before you apply, because unresolved issues lead to a longer and costlier court process. Even partial agreement helps. A lawyer can explain how to record what you have agreed.

Step 4: Prepare and file the petition

In Prince Edward Island a divorce is started by a petition, using Form 70A, under Rule 70 (Divorce Actions) of the Rules of Civil Procedure. A joint petition is also available. A marriage certificate is to be filed with the petition unless the petition explains why that is impossible.

The Court Fees Act Fees Regulations list a $100 fee for a petition for divorce in the Family Section, so confirm the current fee before you file. The Supreme Court's practice note on uncontested divorce documents asks that your affidavit confirm there is no reasonable prospect of reconciliation and that the information in the petition is correct. It also warns that many petitions contain mistakes.

• The petition on Form 70A, or the joint petition if you are applying together with your spouse
• The marriage certificate, or an explanation of why you cannot file it
• Dates of marriage and of separation
• Details about any children, and any agreements you have reached
• Notes on how long each of you has lived in the province, since the residency test depends on it

Step 5: Serve your spouse and get the judgment

How your spouse must be given the court documents, and the time limits for responding, depend on the current Rules and your situation. It is worth confirming them with the court or a lawyer rather than guessing.

Before granting a divorce, the court must satisfy itself that there is no possibility of reconciliation of the spouses. Once the file is in order, the court issues the Divorce Judgment, Form 70S. The divorce takes effect on the thirty-first day after the day the judgment is rendered.

What to do next

• Confirm you meet the one-year residency test
• Work out your separation date and keep a record of it
• Gather the marriage certificate and your financial and children's details
• List what you agree on and what is still in dispute
• Check the current filing fee before you file
• Speak with a lawyer if there are children, property or safety concerns

Frequently asked questions