Residency Requirement to File for Divorce in Alberta

If you have recently moved to or from Alberta, you may wonder whether an Alberta court can still hear your divorce. The answer depends on a residence rule in the federal Divorce Act.

This article explains that rule in plain words, who has to meet it, and the exceptions that can apply.

This article covers the law of Alberta.

The one-year rule

Under section 3(1) of the Divorce Act, a court in a province has jurisdiction to hear a divorce only if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts.

The Court of King's Bench of Alberta puts it simply in its joint-divorce instructions: one of you must have lived in Alberta for one full year before filing, and if neither has, you must wait.

The Court of King's Bench is the only Alberta court that can grant a divorce.

What "habitually resident" means

The Act uses the words "habitually resident", not "ordinarily resident". In everyday terms, it is about where your real home is: where you live on a settled basis, not where you are visiting or staying briefly. How this applies depends on your situation, so it is worth confirming with a lawyer.

If your move to Alberta was recent or your living arrangements have been mixed between provinces, it is worth getting advice on whether you meet the test.

Only one spouse needs to qualify

You do not both need a year in Alberta. If either spouse meets the one-year test, the requirement is satisfied. This matters if one of you has lived here for years while the other recently arrived, or if one spouse moved away.

The year must be the year immediately before the proceeding starts. Time counted long ago, followed by a move away, does not automatically help.

A divorce application can be made by either or both spouses. In a joint divorce, both spouses are applicants and sign the joint documents, so no service on a defendant is needed.

Exceptions and related rules

• Corollary relief proceedings: a proceeding for support or parenting orders on their own, after a divorce, can be heard if either former spouse is habitually resident in the province when it starts, or if both accept the court's jurisdiction. The one-year rule is not the test for those proceedings.
• Spouses who live outside Canada: if you married in a Canadian province but do not live in Canada, you may get a divorce from the court of the province where you married. You must have lived separate and apart for at least one year, and both must live in a state that will not grant a divorce because it does not recognize the marriage. The application can be joint, or by one spouse with the other's consent. Without consent, the applicant needs a court order of a specified kind.
• Parenting and contact under Alberta's Family Law Act are not exclusive to the King's Bench, because the Court of Justice also has jurisdiction under that Act.

Residence is separate from the grounds for divorce. Even if you meet the one-year residence test, you must still show breakdown of the marriage, for example one year of living separate and apart.

Breakdown of the marriage can be shown in three ways: a year of living separate and apart, adultery by the respondent, or physical or mental cruelty that makes continued cohabitation intolerable. Adultery and cruelty are alternatives to the one-year separation, so neither needs a year of separation first.

Spouses can be separated while still living under one roof only if they are in fact living apart, which is a question of fact for the court. The separation period is not interrupted if you resumed living together for no more than ninety days in total with reconciliation as the primary purpose.

What to do next

• Write down the dates you and your spouse lived in Alberta, and where.
• Gather proof of residence, such as a lease, utility bills, employment records or health card details.
• If neither of you has a full year in Alberta yet, note the date you will reach it, since you must wait.
• If you are unsure whether you are habitually resident, ask a lawyer to confirm before you file.
• Check the Court's current instructions, since forms and procedures are revised from time to time.

Once one of you meets the residence test, the next step is deciding how to start. A divorce started by one spouse begins with the Statement of Claim for Divorce, Form FL-01. Spouses who agree can instead use the Joint Statement of Claim for Divorce, Form FL-08. If you rely on one-year separation as the ground, you can start before that year is up but cannot ask for the Divorce Judgment until it has passed.

Frequently asked questions