- A court in the province can hear a divorce if either spouse has been habitually resident there for at least one year immediately before the proceeding starts.
- Only one spouse has to meet the one-year test, so your spouse's time in the province can count even if you recently moved.
- If two divorce proceedings between the same spouses are pending, the one started first generally goes ahead.
Moving to or from Prince Edward Island around the time a marriage ends raises an obvious question: can you start a divorce here, or do you need to apply somewhere else? The answer depends on where you and your spouse have been living, and for how long.
This article explains the residency rule in the federal Divorce Act, how the one-year period is counted, and what to think about if you or your spouse have recently moved.
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 has jurisdiction to hear a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. Justice Canada puts it in plain terms: one spouse must have lived in the province where you apply for a full year immediately before making the application.
For you, that means the question is not how long you were married or how long you have been separated. It is whether you, or your spouse, have been living in Prince Edward Island for the year leading up to the day the divorce is started.
What the wording means for you
The statute uses the words habitually resident, not ordinarily resident. Many people use the second phrase informally, but the Act's own wording is the one that counts. In everyday terms, it is about where your life is actually based.
- Only one spouse needs to meet the one-year test.
- The year is counted back from the day the proceeding starts.
- The year must be immediately before the start of the proceeding, so a gap can matter.
The law does not require both of you to live in the province. If you are the one who moved away but your spouse has stayed in Prince Edward Island for the full year, the requirement can still be met through your spouse.
Recently moved? Common situations
| Situation | How the rule generally applies |
|---|---|
| You moved to the province less than a year ago, and your spouse lives elsewhere | Neither of you may yet meet the one-year test here, so it is worth checking where you qualify |
| You moved away, but your spouse has lived in the province for more than a year | Your spouse's residence can satisfy the test |
| You have lived here for a year or more | You meet the residence test, though other steps still apply |
Real situations are often less tidy than this table, for example when someone moves back and forth or keeps ties to two places. In those cases, a lawyer can confirm how the term habitually resident would apply to your facts.
Two proceedings at once
Sometimes both spouses file, in different places. 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 treated as discontinued. This is one reason timing can matter if you expect your spouse might also file.
What to do next
In Prince Edward Island, a divorce is started by a petition under Rule 70 of the Rules of Civil Procedure, using Form 70A, 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 Fees Regulations under the Court Fees Act list a $100 fee for a petition for divorce in the Family Section, but you should confirm the current fee before filing.
- Write down where you and your spouse have lived, with dates, over the past year or more.
- Work out whether you or your spouse has been in Prince Edward Island for a full year before the day you plan to file.
- Gather your marriage certificate.
- Consider whether you and your spouse can agree on child support, parenting, spousal support and property, since unresolved issues lead to a longer and costlier process.
- Speak with a lawyer if your residence history is unclear.
Frequently asked questions
How long do you have to live in Prince Edward Island to file for divorce?
Either you or your spouse must have been habitually resident in the province for at least one year immediately before the proceeding starts. Only one of you needs to meet this test.
Does it matter that I am separated for a year as well?
The residence year and the separation are separate questions. The Divorce Act also looks at whether the marriage has broken down, which can be shown by living separate and apart for at least one year, among other ways.
What if my spouse files first in another province?
If 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. A lawyer can help you understand where that leaves you.
Did the 2021 changes to the Divorce Act alter how to apply?
The 2021 amendments did not change the grounds for divorce or how to apply.
Sources
- Divorce Act, s. 3 (Justice Laws) — Justice Laws (federal)
- Justice Canada – How to Apply for a Divorce — justice.gc.ca
- Divorce Act, s. 8 (Justice Laws) — Justice Laws (federal)
- PEI Rules of Civil Procedure, Rule 70 — courts.pe.ca
- Court Fees Act Fees Regulations (PEI) — princeedwardisland.ca
- Justice Canada – Divorce — justice.gc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
An uncontested divorce with us is from $1,723.85, tax included. Third-party fees are extra.