Marriage & Common-law

Frequently Asked Questions

  • What is the difference between being married and being common-law?

    Marriage is a legal status that two people enter into willingly. To get married, both people must usually be over 18 years old, must consent to marrying each other, and must not already be legally married to anyone else. People who are 16 or 17 years old can get married, but only with permission from a parent, guardian, or judge. In Manitoba, certain people cannot legally marry each other, including siblings, parents and their children, and grandparents and their grandchildren.

    Common-law partnerships are similar in some ways to marriages, because they sometimes require property sharing and support payments if the relationship ends. In Manitoba, a couple that is living together can register with Vital Statistics as common-law at any time. However, common-law status also automatically occurs at various periods of time for different purposes.  If a couple has lived together for three years they are considered common-law for family property division or spousal support. The time decreases to one year for spousal support if they have a child together. You can be considered common-law after one together for pension division. It is best to check with a lawyer about common-law status in your specific circumstances.

    Next Steps: Marriage

    What are the steps to get married in Manitoba?

    Next Steps: Common-Law Registration

    You are not required to register your common-law relationship with Vital Statistics Agency. However, if you choose to register, then all of the property division laws will immediately apply to you without having to wait for a certain period of cohabitation.

    What are the steps for common-law registration?

    • You can register your common-law relationship with Vital Statistics if both parties consent to registration, are 18 years of age or older, and are Manitoba residents. You can not register if you are currently married or have another common-law relationship still registered under the Act.
    • If you need to end a common-law relationship, then you can file a Registration of Dissolution of Common-Law Relationship with Vital Statistics. The request for dissolution can only be filed once you have lived separate and apart for at least one year.
    • The parties can file jointly, or one party can file and serve the other with the declaration personally, or on their lawyer if they accept service.

    Resources

    Manitoba Vital Statistics Agency

    254 Portage Avenue

    204-945-3701 and 1-866-949-9296

  • What is the difference between a separation and a divorce?

    Separation is when a couple (either married or common-law) decides not to live together as a couple any longer. In most cases, this means one person leaves the home, but in some cases you can continue to live in the same home and still be considered separated.

    Divorce is the legal end of a marriage. It happens only when a Court gives an order called a Divorce Judgment. If you want a divorce, you must apply to the court for it. A common-law couple cannot get divorced.

    Separation does not immediately result in a change of your legal status as a couple. In order to change your legal status, you must take further action or wait a certain period of time:

      • If you are married, you will remain married until you get a divorce. You may only apply for divorce after you have been separated for one year.
      • If you are common-law and registered under Manitoba’s Vital Statistics Act, you will remain common-law until one or both of you de-register as a couple. You may only do this after being separated for one year.
      • If you are common-law and not registered, you will remain common-law until you have been separated for three years.

    Divorce is governed by federal law (The Divorce Act), while common-law relationships and separations are governed by provincial laws.

  • My spouse and I are separating. Can we write up our own agreement?

    You can, but most people decide to have a lawyer prepare the agreement. You have to be careful that you cover all the issues between you and your spouse, and that you use the right wording in the agreement. There may also be issues involving proper financial and other disclosure. A separation agreement is a very important legal document that deals with issues like your children and your finances. You must be able to rely on the agreement in the future and be able to enforce the agreement through the Court if it isn’t followed. You should also each get independent legal advice from your own lawyer before signing a Separation Agreement.

    Next Steps: Reaching an Agreement

    The Department of Justice has resources to help you create a parenting plan including:

    Making Plans: A guide to parenting arrangements after separation or divorce

    Parenting Plan Checklist

    You can find the Guide and Checklist at the following link:

    https://www.justice.gc.ca/eng/fl-df/parent/plan.html

  • Are there any programs that can help my spouse and I with putting our decisions as to parenting arrangements, support, and property division into a written agreement?

    The Manitoba Department of Families has a Family Conciliation Services department that offers a number of programs, included mediation. If your spouse and you both agree and you attend their information program, For the Sake of the Children, then you can attend their mediation program and a trained mediator will assist you with working out all of the issues that arise from separation. You may choose to take your agreement and have it finalized by a family law lawyer.

    Next Steps:

    How can I contact Family Conciliation Services?

    https://www.gov.mb.ca/fs/childfam/family_conciliation.html

    Winnipeg – 204-945-7236
    Toll-Free – 800-282-8069
    Brandon – 204-726-6336
    Toll-Free – 800-230-1885
    Dauphin – 204-622-2035
    Toll-Free – 866-355-3494
    Thompson – 204-677-6570
    Toll-Free – 866-677-6713
    The Pas – 204-627-8311
    Toll-Free – 866-443-2292
    Flin Flon – 204-687-1700
    Toll-Free – 866-443-2291
    Swan River – 204-734-3491
    Toll-Free – 888-269-6498

  • What are the grounds for a divorce?

    There is only one ground for divorce in Canada: to show that your marriage has broken down. The Court will consider your marriage broken down if one of these three things has happened:

      • You have lived separate and apart from your spouse for at least one year.
      • Your spouse has committed adultery (had voluntary sexual intercourse with someone else). You must be able to prove that the adultery took place. You cannot apply for a divorce based on your own adultery.
      • Your spouse has treated you in a physically or mentally cruel way. You must be able to prove that the cruelty took place, that it had serious effects on you, and that it made living together unbearable.
  • If I am married, can I just file for a separation rather than a divorce?

    Yes. You can file a Petition (Form 70B) and apply for relief under a separation, rather than a divorce. The court can make a number of orders including orders for child and spousal support and parenting orders. You do not have to apply for a separation before you proceed with a divorce, so if you are intending to eventually divorce, you may want to start the court process by filing a Petition for Divorce (Form 70A) instead.

    You can get all the Court of Queen’s Bench Forms at the following link:

    http://web2.gov.mb.ca/laws/rules/forms_e.php

  • How do I know whether to file a Petition or Petition for Divorce to start my family proceedings?

    If you are married and asking for a divorce, you would file a Petition for Divorce (Form 70A), whether or not you are asking for other family relief (support, a parenting order, property division).

    If you are unmarried, or common-law, you would file a Petition (Form 70B). If you are married, but not asking for a divorce, you would also file a Petition.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • How long does my spouse have to respond to my Petition or Petition for Divorce?

    If your spouse lives in Manitoba they have 20 days to respond by filing and serving you with an Answer or an Answer and Petition for Divorce (Form 70J). If your spouse lives outside of Manitoba but in Canada or the United States, they have 40 days to respond by filing and serving an Answer. If your spouse lives outside of Canada and the United States they have 60 days to respond.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • Do I need to serve anyone else with family court documents?

    Depending on the type of court matter, you may need to notify certain third parties by serving them with court documents. For example, you must serve the Director of Child and Family Services if you are asking for a declaration of parentage. You must serve the Director of Assistance if you are asking for an order to cancel support arrears or suspend enforcement of support. An initiating pleading, such as a Petition, must generally be served within one year of when it was filed.

    See The Court of Queen’s Bench Rules, Rule 70.06(5) for specific service requirements:

  • What do I do if I can’t find my spouse to serve them with documents?

    If you have taken reasonable steps to try and locate your spouse and can’t find them, you may be able to apply for an order from the court for substituted service. If an order for substituted service is granted, the court may allow you to serve the documents in some other way, such as by publishing a notice in a newspaper or serving the documents on a family member.

    You can apply for an order of substituted service by filing a Notice of Motion and an Affidavit giving evidence of all the attempts that you have made to locate your spouse.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • Are there any other documents that can be filed to start a family proceeding?

    You would file a Notice of Application to start court proceedings like adoptions, guardianship, and applications for contact by someone other than a parent. You would file a Statement of Claim if you are dealing with a civil dispute.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • How does my ex-partner find out that I filed in court?

    You must serve the court documents on your ex-partner so that your ex-partner knows that you have started a court proceeding. If you filed a PetitionPetition for Divorce, or a Notice of Motion to Vary you must serve these personally. This means that the document must be given in person to the other party. However, you can’t be the one to personally serve them. You must get a third party, such as a friend, family member, or process server to give them the Petition, Petition for Divorce, or Notice of Motion to Vary.

    The person that serves your ex-partner will fill out and swear a document called an Affidavit of Service (Form 70I) that provides details about how they served your ex-partner.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • I filed a Petition but then I realized that I forgot some things I wanted to request. Is there any way to change the petition?

    If the pleadings are not closed, you can file a Requisition asking to file an amended Petition.

    A Requisition is a form that asks the court to do something on your file. The amendment is made on the original Petition by making the changes and underlining them. If there is not enough room to make the changes on the Petition, you will have to file a new one with the changes. This new Petition will be called an Amended Petition and will have the original filing date on it.

    The Amended Petition must be served again on the other party. If the other party did not respond to the Petition the first time that it was served, you must personally serve the Petition.

    If the pleadings are closed, you can only make amendments with the written consent of the parties or by asking for permission from the court.

    Next Steps:

    • You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

    • If you do not need permission from the court you can file a Requisition Form requesting the amendments. If you need to obtain leave (permission) from the court you will need to file a Notice of Motion and Affidavit to proceed.
  • I am asking for a divorce and my spouse agrees. What documents do I need to file in addition to the Petition for Divorce and marriage certificate?

    You will also need to prepare a Requisition to note default and set down an affidavit hearing, an Affidavit of Petitioner’s Evidence, three copies of a Divorce Judgment, the Affidavit of Service, and two stamped, addressed envelopes, one for yourself and the other for your spouse. The court will mail out the Divorce Judgment once signed by the judge.

    You can get the court forms here: http://web2.gov.mb.ca/laws/rules/forms_e.php

    You can’t file the Requisition to note default until after the time period for filing an Answer has expired. The time depends on where your spouse lives. If your spouse lives in Manitoba, your spouse has 20 days to file an Answer after they are served. You can file the Requisition setting down an affidavit hearing when the court receives a Central Divorce Registry Certificate confirming that neither party has filed for divorce elsewhere in Canada. The court will apply for this Certificate for you once you file your Petition for Divorce. It can take several weeks for this Certificate to arrive.

    Next Steps:  

    • Check with the court registry to see whether The Central Divorce Registry Certificate (CDR) has arrived. You can call the local office or check online at https://web43.gov.mb.ca/Registry/NameSearch
    • File your Forms: Affidavit of Service (if not already filed), Requisition, Affidavit of Petitioner’s Evidence, and Divorce Judgment (3 copies).
    • You will also need to provide the two stamped, addressed envelopes for both parties to the court.
  • What happens if my spouse will not sign the divorce papers?

    The person who serves the Petition for Divorce will ask your spouse to sign a document called an Acknowledgment of Service. If your spouse refuses to sign this document, the divorce can still proceed. The person who serves your spouse will fill out an Affidavit of Service and indicate that they asked your spouse to sign and your spouse refused. This will not delay the divorce process.

    If your spouse does not file an Answer in response to your Petition for Divorce, you can note your spouse in default and still proceed on an uncontested basis.

    You can get all of the Court of Queen’s Bench Forms at the following link:

    https://web2.gov.mb.ca/laws/rules/forms_e.php

  • Can I just get my divorce granted and deal with all my other family law issues later?

    In some cases you may apply to sever an issue and have separate hearings in the same court proceeding. The court has discretion about whether to allow such a severance and they will consider whether there is a valid reason for the severance. The court is supposed to avoid multiple proceedings where they are not necessary. A court is also required to make sure that reasonable arrangements have been made for the support of any children of the marriage before they can grant a divorce.

  • Can I apply for divorce anywhere in Canada?

    You can only apply for divorce in a province where one of the spouses has been a resident for at least 1 year and continues to be a resident at the time of filing.

  • Can I file for divorce without a lawyer?

    Yes. However, it is a good idea to have a family law lawyer help you with the process. There are also law firms that offer unbundled services providing assistance with form-filling or other limited scope representation. If you are filing on your own, you can get the forms for a divorce from the Law Courts Building at 408 York Avenue in Winnipeg or online at:

    web2.gov.mb.ca/laws/rules/forms_e.php

    Community Legal Education Association also sells an Uncontested Divorce Guide for $30. You can purchase our Uncontested Divorce Guide from our Publications Store online at:

    https://www.communitylegal.mb.ca/publications-store/

  • Can my spouse and I file jointly for divorce?

    Yes. However, you may need to change the forms to reflect that fact that you are both filing as petitioners for divorce. This would eliminate the need to serve your spouse with the Petition for Divorce.

  • Can my spouse and I share a divorce lawyer to save money?

    No. You each need to have a different lawyer. Your lawyer works for you, providing you with legal advice that applies specifically to your situation. One lawyer cannot provide independent legal advice to both spouses in a separation, because each spouse has different interests. Before signing any agreement, you should also each get independent legal advice from your own lawyer.

  • Can I file for divorce even if I am still living with my spouse for financial reasons?

    Yes. You can still file for divorce as long as you have been living separate and apart in the same household. This usually means that you have separate bedrooms, do not perform chores for each other, have informed your friends and family that you are separated, and are living separate lives. You must also have clearly communicated to your spouse that you are considering yourself separated as of a certain date.