Prince Edward Island Divorce Residency Rule: How Long You Must Live Here

If you have recently moved to Prince Edward Island, or your spouse lives in another province, you may be wondering whether you can start a divorce here at all. The federal Divorce Act sets a residency test, and it is simpler than many people expect.

This article explains how that test works, who has to meet it, and how it connects to the paperwork you file with the Supreme Court of Prince Edward Island. It is general information, not advice on your own situation.

This article covers the law of Prince Edward Island.

The one-year residency rule

Under section 3(1) of the Divorce Act, a court in a province can hear a divorce proceeding if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts. Justice Canada puts it in everyday terms: one spouse must have lived in the province where you apply for a full year immediately before making the application.

Two details matter. The statute uses the words "habitually resident", not "ordinarily resident". And the year is counted back from the day the proceeding starts, so the clock does not stop at some earlier date.

Who has to meet the test

Only one spouse needs to meet the one-year test. That helps in two common situations:

• You moved to Prince Edward Island less than a year ago, but your spouse has lived here for the full year before the proceeding begins. The test can still be met through your spouse.
• Your spouse has moved away, but you have stayed on the Island for at least the year before the proceeding begins. Your residence can carry the test.

If neither of you has been habitually resident in the same province for a year, a court in that province generally cannot hear the divorce yet. In that case you may need to wait, or ask a lawyer where an application can properly be made.

There is one exception to know about. 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. If your spouse may have filed elsewhere, find out before you file.

Residency is not the same as separation

People often mix up two different one-year periods. Breakdown of the marriage is the only ground for divorce. It is usually shown by living separate and apart for at least one year, or by adultery or cruelty that makes continued cohabitation 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 the respondent spouse has committed adultery or treated the other spouse with physical or mental cruelty making continued cohabitation intolerable, the other spouse can seek a divorce without waiting out the separation year. The residency year is a different matter and is measured from when the proceeding starts.

Showing residency in your court filing

In Prince Edward Island a divorce is started by a petition, Form 70A, under Rule 70 of the Rules of Civil Procedure, and a joint petition is also available. A marriage certificate is to be filed with it unless the petition explains why that is impossible. The Family Section fee for a petition for divorce is listed as $100, though you should confirm the current fee before filing.

The Supreme Court's practice note on uncontested divorce documents asks that the petitioner's affidavit confirm the petition's information is correct, and it warns that many petitions contain mistakes. Residence details are the kind of information that needs to be accurate and consistent with your other documents. Exactly what evidence a judge or the court office expects for residence can vary, so a lawyer or the court office can confirm.

Once the file is in order, the court issues the divorce judgment on Form 70S, and the divorce takes effect on the 31st day after judgment.

What to do next

• Write down the date you or your spouse began living on the Island and count the full year back from the day you plan to file.
• Gather records that show where you have lived, such as leases, utility bills, health card details and employment records.
• Find out whether your spouse has started a divorce in another court.
• Locate your marriage certificate, or be ready to explain why you cannot.
• Try to settle child support, parenting, spousal support and property before applying, since unresolved issues lead to a longer, costlier court process.
• Confirm the current filing fee and forms with the court before you file.

Frequently asked questions