Joint Divorce in Alberta: How Filing Together With Your Spouse Works

If you and your spouse both agree that the marriage is over, you may not need one of you to sue the other. Alberta lets spouses apply together, which can feel less adversarial and removes some of the steps a one-spouse divorce requires.

This article explains in plain terms how a joint divorce differs from a one-spouse divorce in the Court of King's Bench of Alberta, which forms are involved, and what to think about before you file. Your own situation may raise points that a lawyer can confirm.

This article covers the law of Alberta.

Who can use a joint divorce

The federal Divorce Act allows a divorce application to be made by either or both spouses, and the only ground is that the marriage has broken down. A joint divorce is the option where you make the application together.

As a general rule, a court in the province can hear the divorce only if either spouse has been habitually resident there for at least one year immediately before the proceeding starts. Only one of you needs to meet that test. The Court's joint-divorce instructions put it as one of you having lived in Alberta for one full year before filing, and say that if neither of you has, you must wait.

There is an exception under s. 7 of the Civil Marriage Act. Spouses who were married in a Canadian province but do not live in Canada may get a divorce from the court of the province where they married, if they have lived separate and apart for at least one year and both live in a state that will not grant a divorce because it does not recognize the marriage. The application can be joint, or by one spouse with the other's consent. Without consent, the spouse applying needs a court order of a specified kind. If this might describe you, a lawyer can confirm how it applies.

Joint divorce is meant for spouses who agree. If you cannot agree, a one-spouse divorce may fit better, and a defendant who contests it takes it out of the uncontested desk process.

The joint forms

Alberta provides a set of joint forms for the Court of King's Bench. Court packages are revised from time to time, so check the current versions before you start.

Every desk divorce package submitted to the Court must also include a Desk Divorce Package Checklist.

No service, and help with the affidavit

In a one-spouse divorce, the Court's instructions say the plaintiff cannot serve the Statement of Claim personally. A third party must do it, and the Court strongly recommends hiring a process server who supplies a sworn Affidavit of Service.

A joint divorce avoids that step. Both spouses are applicants and sign the joint documents, so no service on a defendant is needed.

The joint documents include a Joint Affidavit of Applicants for Divorce, Form FL-24. The Court's instructions say the clerk at the Court of King's Bench Divorce Counter, or staff at Resolution Services, can act as Commissioner for Oaths for the joint affidavit.

Children, property and timing

• With dependent children, the joint package is separate from the one without children. It needs the Child Support Data Sheet and a Notice of Mandatory Seminar, and the judgment is the Joint Divorce Judgment and Corollary Relief Order, Form FL-26.
• The court must be satisfied that reasonable arrangements have been made for the children's support.
• The uncontested packages are for cases where custody, access (parenting) and support have been settled, and they do not deal with property division.
• If your claim includes dividing family property, a different form is used: Statement of Claim for Divorce and Division of Family Property, Form FL-03.

On timing, if you rely on one year of separation, you can start before the year is up but cannot ask for the Divorce Judgment until the year has passed. Spouses are treated as living separate and apart for a period when they lived apart and either intended to live separate and apart, and you can be separated under one roof only if you are in fact living apart. Getting back together for no more than ninety days in total, with reconciliation as the main purpose, does not interrupt the separation period.

If one of you changes your mind

A Notice of Withdrawal – Joint Divorce Proceedings, Form FL-09, is available under Rule 12.13(3). If one spouse no longer wants to proceed jointly, speak with a lawyer about whether withdrawal, or a one-spouse application, is the right step.

What to do next

• Confirm that at least one of you has lived in Alberta for a full year, or whether an exception might apply to you.
• Confirm the date you separated and whether the one-year period is complete.
• Settle parenting, child support and spousal support, and decide how property will be dealt with.
• Download the current joint package from the Court, with or without children as it applies.
• Check the Court's current filing methods and fees, as these can change.
• Ask a lawyer to review your documents if anything is unclear.

After the judgment, the divorce generally takes effect on the thirty-first day. A court may make it take effect earlier if it finds special circumstances and the spouses agree and undertake that no appeal will be taken, and a pending appeal can delay when it takes effect. In Alberta you then request the Certificate of Divorce through the online request form on the Court of King's Bench website.

Frequently asked questions