Joint Divorce Petition or Filing Alone in New Brunswick?

When a marriage ends, one of the first practical questions is how to start the divorce. In New Brunswick you generally choose between filing together with your spouse and filing on your own. The choice affects which forms are used and how much your spouse has to take part.

This article explains the difference between the two routes, the rules that apply to both, what happens if your spouse disagrees, and the steps at the end. It is general information, not advice on your own situation.

This article covers the law of New Brunswick.

The two routes at a glance

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

Consent matters only for a joint petition. A sole petition can proceed where the other spouse does not cooperate, and the court decides after the separation is proved.

What applies to both routes

Two basic requirements are the same whichever form you use. First, 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. Second, a court may grant a divorce on the ground that the marriage has broken down.

Breakdown is usually shown by living separate and apart for at least one year immediately before the divorce is decided. It can also be shown without waiting a year if the other spouse committed adultery or treated the applicant with physical or mental cruelty that makes living together intolerable.

• Spouses are treated as living separate and apart for any period they lived apart, and the clock can run even if you shared a home, subject to proof and to at least one spouse intending to live separate and apart.
• A short return to living together of no more than ninety days, mainly to try to reconcile, does not restart the separation period.

If your spouse disagrees

A spouse who is served and does not agree has several forms available: an Answer (72D), an Answer and Counter-Petition (72F), a Notice of Intent to Defend (72I), and the petitioner may respond with a Reply (72E).

Disagreement does not automatically stop a divorce. Because the ground is breakdown of the marriage and not the other spouse's consent, the court decides once the separation is proved. Disputes about children, support or property are separate issues that may need their own resolution.

The steps at the end, and what the court checks

After the petition stage, the forms include a Financial Statement (72J), a Request for Divorce (72K), the Divorce Judgment (72M or 72N) and finally a Certificate of Divorce (72O). Whether you need a Financial Statement depends on what issues are in front of the court.

The court has duties under both routes. It must be satisfied that reasonable arrangements have been made for the support of any children of the marriage, and it must dismiss the application if there was collusion in presenting it. It must also consider the possibility of reconciliation. Parties are expected to try to resolve the matters that may be the subject of an order, including through family dispute resolution, to the extent appropriate.

Choosing and next steps

A joint petition can suit spouses who agree about the divorce itself and are cooperating. Filing alone is the route when your spouse will not take part, cannot be reached to sign, or you want the matter to move without their agreement. A lawyer can help you weigh this, since the right choice depends on your facts.

• Confirm that you or your spouse has lived in New Brunswick for at least one year.
• Write down the date you separated and how you can show it.
• Decide whether you and your spouse can truly agree on filing together.
• Gather your plans for children and support, since the court will check them.
• Collect income and financial records you may need for a Financial Statement.
• Speak with a lawyer about fees, deadlines and service, which depend on your case.

Frequently asked questions