Frequently Asked Questions
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 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 if the couple has lived together for three years, or if they have lived together for one year and have a child together.
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:
Divorce is governed by federal law (The Divorce Act), while common-law relationships and separations are governed by provincial laws.
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. 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.
Manitoba Family Services and Housing has a Family Conciliation department that offers a number of programs. If your spouse and you both agree 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. Family Conciliation can be contacted at:
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:
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.
If you are married and asking for a divorce, you would file a Petition for Divorce, 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. If you are married, but not asking for a divorce, you would also file a Petition.
If your spouse lives in Manitoba they have 20 days to respond by filing and serving you with an Answer. 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.
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 Employment and Income 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:
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 in a newspaper or serving 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 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 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 Petition, Petition 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 that provides details about how they served your ex-partner.
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.
You will also need to prepare a Requisition to note default and set an oral or affidavit hearing, an Affidavit of Petitioner’s Evidence (if proceeding that way), 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. You can file the Requisition setting down an oral or 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.
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.
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.
You can only apply for divorce in a province where one of the spouses has been a resident for at least 1 year.
Yes. However, it is a good idea to have a family law lawyer help you with the process. You can get the forms for a divorce from the Law Courts Building at 408 York Avenue in Winnipeg. Community Legal Education Association also sells an Uncontested Divorce Guide for $30.
You can also get the forms online at:
Yes. However, you may need to change the forms to reflect that fact that you are both filing as petitioners for divorce.
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.
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.