How Long Must You Live in BC Before Filing for Divorce?

If you have just moved to British Columbia, or have come back after time away, one of your first questions about divorce is probably whether you have lived here long enough. The answer comes from the federal Divorce Act, which sets a residency test that a BC court must find is met before it can hear your case.

This article explains that test in plain words, who has to meet it, how it differs from the separation requirement, and what to confirm before you file.

This article covers the law of British Columbia.

The one-year residency rule

Under section 3 of the Divorce Act, a court has jurisdiction over a divorce proceeding where either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. The Province of BC puts it simply: you or your spouse have lived in BC for a year or more.

The word "immediately" matters. The year is counted back from the day the proceeding starts, so it is the period right before you file that counts, not just any year in the past.

Only one spouse needs to qualify

You do not both have to meet the rule. Only one spouse needs to have been habitually resident in the province for the year. If you moved here recently but your spouse has lived here for years, the residency requirement can still be met through your spouse.

"Habitually resident" is a legal term. In everyday terms it is about where you actually make your home, not just where you are visiting. How it applies to someone who has moved often, studied or worked away, or split time between places depends on the facts, so it is worth confirming with a lawyer if your situation is not straightforward.

Residency is not the same as separation

People often mix up two different one-year periods. Residency is about where you live. Separation is about whether the marriage has broken down. The Divorce Act says breakdown is established where the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living separate and apart at the start of the proceeding.

You can apply for a divorce at any time after separating, but the court will not grant a divorce on the separation ground until you have been separated for at least one year.

What else the court looks at

Only the Supreme Court of British Columbia can grant a divorce in BC, and it does so if the marriage has broken down and the other legal requirements are met. Residency is one of those requirements, not the only one.

• If there are children of the marriage, the court must be satisfied that reasonable arrangements have been made for them, including child support.
• Separating does not require a court step, but you need a divorce order if you want to remarry.
• A divorce takes effect on the thirty-first day after the day the judgment granting it is rendered.

What to do next

Before filing, work out your own timeline and your spouse's. Then decide whether the residency requirement is met by one of you.

• Write down where each of you has lived over the past year and when you arrived in or returned to BC.
• Gather documents that show where you have made your home, such as leases, utility bills or government records.
• Note the date you separated, since the separation requirement is a different test.
• If you moved between provinces or countries, or the dates are unclear, speak with a lawyer about whether you are habitually resident.
• Look into free help such as Family Justice Centres, Justice Access Centres, the Parenting After Separation course or Legal Aid BC.

Frequently asked questions