- A Manitoba court can hear a divorce if either spouse has been habitually resident in the province for at least one year.
- If neither of you meets the one-year test, the Manitoba court cannot grant the divorce yet.
- Parenting and support claims under the Divorce Act have a different jurisdiction test with no one-year minimum.
If you recently moved to Manitoba, or you or your spouse moved away, you may be wondering whether a Manitoba court can grant your divorce. The Divorce Act sets a residence rule, and it is easy to misread.
This article explains how the one-year rule works, who has to meet it, and what your options are if neither of you does yet.
This article covers the law of Manitoba.
The one-year rule in plain words
In Manitoba, a divorce is filed in the Court of King's Bench (Family Division). That court can hear a divorce proceeding under the Divorce Act if either spouse has been habitually resident in Manitoba for at least one year. The statute uses the words habitually resident, rather than ordinarily resident, so that is the phrase to look for.
How the court applies that phrase to a person who moves often or lives in two places depends on the facts, so it is worth confirming with a lawyer. Because the test looks at either spouse, it helps to write out each person's own history of where they have lived.
Only one spouse needs to qualify
The test is met if either spouse has been habitually resident in Manitoba for at least one year. The spouse who files does not have to be the one who meets it.
For example, if you moved to Manitoba three months ago but your spouse has lived here for years, the residence requirement can still be met through your spouse. The reverse also holds.
What if neither of you has been here a year?
If neither spouse meets the one-year test, a Manitoba court has no jurisdiction to grant the divorce. Your choices are to wait until one of you has been resident for a year, or to use the court of a province or territory where one of you has been resident for a year.
If you are in this position, keep records that show when you arrived, such as a lease, a utility bill or a health card. They can help prove your residence date when the time comes.
Special situations to know about
| Situation | What the rule says |
|---|---|
| Divorce itself | Either spouse must have been habitually resident in the province for at least one year. |
| Parenting or support only (corollary relief) | Jurisdiction exists if either former spouse is habitually resident in the province when the proceeding starts, or both accept the court's jurisdiction, with no one-year minimum. |
| Two divorce proceedings started in different courts on different days | The court where the earlier proceeding began has exclusive jurisdiction over any pending divorce proceeding between the spouses, and the later one is deemed discontinued. |
| Duplicate parenting or support proceedings | The later proceeding is deemed discontinued if the earlier one is not discontinued. |
The race-to-file rule matters if your spouse lives in another province. Filing first can decide which court hears the divorce, so get advice quickly if you think your spouse may file elsewhere.
Residence is not the only requirement
Meeting the residence test only gives the court jurisdiction. You must also show the marriage has broken down, usually by living separate and apart for at least one year before the divorce is decided, and by being separated when the proceeding began. A different route is available if the other spouse has committed adultery or treated you with cruelty that makes living together intolerable.
You can file before a year of separation is complete, but the divorce will be granted on that basis only once you have lived apart for the year. Also, the Divorce Act applies to marriages, so common-law partners cannot use it.
What to do next
- Write down the date each of you began living in Manitoba and any moves since.
- Collect documents that show your address history.
- Note your separation date.
- If you or your spouse live in another province, ask a lawyer where filing makes the most sense before anyone files.
- If you do not yet qualify, ask about options for parenting and support in the meantime.
Frequently asked questions
Do both of us have to live in Manitoba for a year?
No. The test is met if either spouse has been habitually resident in Manitoba for at least one year.
Can I deal with parenting or support if I have not lived here a year?
The one-year requirement applies to the divorce itself. For a proceeding about parenting or support only, a court may have jurisdiction if either former spouse is habitually resident in the province when it starts, or both accept the court's jurisdiction.
What if my spouse files for divorce in another province?
If two divorce proceedings are started in different courts on different days, the court where the earlier one began has exclusive jurisdiction and the later one is deemed discontinued. This is a good reason to get advice early.
Does the one-year residence rule also mean I must be separated a year?
They are separate requirements. Residence goes to the court's jurisdiction, while the usual ground for divorce is a year of living separate and apart.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 3(1) — Justice Laws (federal)
- Divorce Act, s. 8(2)(a) — Justice Laws (federal)
- Manitoba Courts – Family Division FAQ — manitobacourts.mb.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
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