- A New Brunswick court can hear a divorce if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts.
- Residency is separate from the one-year separation ground for breakdown of the marriage.
- Divorce proceedings are in the Court of King's Bench, Family Division.
If you recently moved to New Brunswick, or your spouse moved away, you may wonder whether you can file for divorce here. The law sets a residency test, and it works differently from what many people expect.
This article explains the one-year test, how it differs from the separation requirement, and the records that help show where you have lived. Your own facts matter, so a lawyer can confirm how the rule applies to you.
This article covers the law of New Brunswick.
The one-year residency test
Under the federal Divorce Act, a court in a province has jurisdiction to hear a divorce proceeding if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts.
Two points stand out. First, it is enough that either spouse meets the test. Second, the year must run immediately before the proceeding starts, so it is measured back from the filing date.
In New Brunswick, divorce proceedings are in the Court of King's Bench, Family Division.
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, which is generally established if you have lived separate and apart for at least one year immediately before the divorce is determined.
| Test | What it asks | Source |
|---|---|---|
| Residency | Has either spouse been habitually resident in the province for at least one year before the proceeding starts? | Divorce Act s. 3(1) |
| Separation | Have you lived separate and apart for at least one year before the divorce is determined? | Divorce Act s. 8(2)(a) |
There is an exception to the separation wait where the other spouse committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable. That exception concerns the separation ground only, and the residency test is a separate requirement.
Spouses are deemed to have lived separate and apart for any period during which they lived apart, and the Act's wording also requires that at least one of them intended to live separate and apart. Whether time under the same roof counts depends on the facts, so it is worth confirming with a lawyer. A short attempt at reconciliation does not necessarily restart the clock: the separation period is not considered interrupted if the spouses resume cohabitation for no more than ninety days with reconciliation as its primary purpose.
Common moving scenarios
- You moved to New Brunswick less than a year ago, but your spouse has lived here for years: the test says either spouse can meet it.
- You both moved here recently: neither may meet the one-year test yet, so you may need to wait before filing here.
- You left New Brunswick but your spouse stayed: your spouse's year of residence may satisfy the test.
- You split time between provinces: whether you are habitually resident in one is a factual question worth discussing with a lawyer.
If you are applying together, spouses who agree may file a Joint Petition for Divorce, Form 72B, rather than one spouse filing a Petition (Form 72A) and serving a Notice of Petition (72C).
How to show where you have lived
Habitually resident means, in plain words, where you ordinarily live. The law counts the year before filing, so gather records that cover that whole year.
- Lease, mortgage or property tax records showing your New Brunswick address.
- Driver's licence, health card and vehicle registration showing when you changed your address.
- Utility, phone and internet bills in your name.
- Employment records, pay stubs or school enrolment for children.
- Tax returns and bank statements showing your address.
What to do next
Count back one year from the date you plan to file and check whether you or your spouse can document ordinary residence in New Brunswick for that full period. Then separately check that your separation date supports breakdown.
If your spouse will not cooperate, a divorce can still proceed on a petition by one spouse, and the court decides after the separation is proved.
Children are a separate question. The Court may make or vary a parenting order if the child is habitually resident in New Brunswick when the application begins. If you are planning a move with a child, relocation notice rules also apply, generally with at least 60 days' written notice in a divorce setting.
A lawyer can confirm whether you meet the test and which court forms to use.
Frequently asked questions
Do both spouses need to have lived in New Brunswick for a year?
No. The test is met if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts.
Is the residency year the same as the separation year?
No. Residency is about where you ordinarily live, while separation is about whether you have lived separate and apart for at least one year. Both ideas matter, and they are tested separately.
Can I file if my spouse lives in another province?
Possibly, if you or your spouse has been habitually resident in New Brunswick for at least one year before filing. Where your spouse lives does not by itself decide it. A lawyer can confirm for your situation.
Which court handles divorce in New Brunswick?
Divorce proceedings are in the Court of King's Bench, Family Division, using the Rule 72 forms such as the Petition for Divorce (72A) or the Joint Petition (72B).
Sources
- Divorce Act (Justice Laws) — Justice Laws (federal)
- Court of King's Bench of New Brunswick – Family Division forms — courtsnb-coursnb.ca
- Family Law Act, SNB 2020, c. 23 — laws.gnb.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.