There are specific requirements in the Divorce Act (Canada) for a married couple to receive a divorce. If you do not meet these requirements, your divorce application may be delayed.
Section 3 of the Divorce Act requires one of the two spouses to have lived in a province for ‘at least one year immediately preceding the commencement of the proceeding’. This means that someone just moving to Alberta is not able to ask for a divorce from the Court of Queen’s Bench of Alberta.
However, this may not be the last word. We can look at the residence of the new Albertan’s spouse. If the spouse has lived in BC for more than a year, the new Albertan can ask for a divorce from the Supreme Court of BC.
Section 3 does not mean that you must live in a province for at least a year. Either you or your spouse can meet this requirement.
Section 8(2) requires that spouses live separate and apart for ‘at least one year immediately preceding the determination of the divorce proceeding and were living separated and apart at the commencement of the proceeding’.
This is often misinterpreted as separated couples are unable to divide their property or have support paid until one year after their separation. This is not the case; either spouse can start a divorce action with the court, and seek “Corollary Relief” form the court before the one year of separation has expired. It is only the “Divorce Judgment” that must wait until the one year of separation has expired.
There are other grounds for divorce – adultery or cruelty. These grounds for divorce are more ambiguous and are not often relied upon for obtaining a divorce from the court.
Do you have questions about your legal status and rights? Call us.