Separated Under the Same Roof: Divorce in Alberta

Many couples cannot afford to move out, or want to stay in the home for the children, even though the marriage is over. If that is you, you may wonder whether the months under one roof count toward the separation period needed for a divorce.

Under the federal Divorce Act, they can, but only in particular circumstances. This article explains the rule, the exceptions for reconciliation attempts, and how to approach proving your separation to an Alberta court.

This article covers the law of Alberta.

The one-year separation ground

A court may grant a divorce on application by either or both spouses, on the single ground that there has been a breakdown of the marriage. Breakdown is established only in three ways.

• The spouses have lived separate and apart for at least one year immediately before the divorce is decided, and were living separate and apart when the proceeding started.
• The respondent has committed adultery since the marriage.
• The respondent has treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable.

Most people rely on the first. Adultery and cruelty are alternatives, so neither needs a year of separation first.

Can you be separated while living in the same home?

Spouses are deemed to be living separate and apart for any period when they lived apart and either of them intended to live separate and apart from the other. They can be separated while still living under one roof only if they are in fact living apart. Whether that is true in your home is a question of fact for the court.

In plain words, simply deciding in your own mind that the marriage is over is not enough if your daily life has not changed. What matters is how the two of you actually live. Because the answer turns on the details of your household, a lawyer can help you judge how your situation looks.

Trying again: reconciliation and incapacity

Many couples try to reconcile before giving up. The separation period is not interrupted if the spouses resumed living together for a period, or periods totalling, not more than ninety days with reconciliation as the primary purpose. If you spent more time together than that, or the purpose was not reconciliation, get advice about how it affects your separation period.

There is a further exception. The separation period is not interrupted only because one spouse has become incapable of forming or having the intention to continue living separate and apart. This applies if it appears to the court that the separation would probably have continued had that spouse not become incapable.

Showing the court you are separated

In a one-spouse divorce, you start with the Statement of Claim for Divorce, Form FL-01, and an uncontested package also includes the Request for Divorce (Form FL-21) and the Affidavit of Applicant for Divorce (Form FL-23). If the other spouse does not respond, the court decides the divorce on paper, without oral evidence, on the Request for Divorce and supporting affidavits. That means your sworn statement may be the main way the court learns about your living arrangements.

Since the question is one of fact, it helps to keep a clear record of how your household changed once you separated. Dates matter, and so does consistency between what you say in your documents and how you live. Things worth noting include when the separation began, how the household was divided, and any periods of reconciliation.

A spouse who relies on one-year separation can start the divorce before the year is up, but cannot ask for the Divorce Judgment until the year has passed.

What to do next

• Write down the date you believe the separation began and what changed in your household.
• Record any attempts to reconcile, with dates, and add up the time you lived together as a couple.
• Check that either you or your spouse has been habitually resident in Alberta for at least one year immediately before filing.
• Remember that a divorce takes effect on the thirty-first day after the judgment is rendered, and that an earlier date needs special circumstances, your spouse's agreement and an undertaking that no appeal will be taken.
• Confirm your next steps with a lawyer if your situation is unclear, or if there are children or property to sort out.

Frequently asked questions