Marriage & Common-law

Marriage is a legal status that two people enter into willingly. To get married, both people usually

• must 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 brothers and sisters, 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.

For example:

• If a couple has lived together for three years they are considered common-law for family property division or spousal support.
• If the couple has lived together for one year and have a child together, they are considered common law for spousal support.
• You can be considered common-law after one year of living 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?

1. You must buy a marriage license at least 24 hours before you plan to get married. The license is valid for three months and can only be used for a Manitoba marriage. Manitoba Vital Statistics Agency has a list of marriage license issuers in Winnipeg at this link and outside of Winnipeg at this link.
2. Clergy or a registered marriage commissioner can perform the marriage after you give them the marriage license. After the wedding ceremony, the officiant, both parties and their witnesses will sign the marriage registration.
3. The officiant will send the marriage registration to Vital Statistics to register the marriage.
4. To request a Marriage Certificate after your marriage, contact Vital Statistics at 204-945-3701, 1-866-949-9296 or at

Next Steps: Common-Law Registration

You don’t have 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 live together for a certain period of time.

What are the steps for common-law registration?

1. You can register your common-law relationship with Vital Statistics if both of you consent to registration, are 18 years of age or older, and are Manitoba residents. You cannot register if you are currently married or have another common-law relationship still registered under the Act.

What are the steps to register to end a common-law relationship?

1. 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.
2. The parties can file jointly, or one party can file and serve the other with the declaration personally, or on their lawyer if the lawyer accepts service.

Resources

Manitoba Vital Statistics Agency

254 Portage Avenue

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

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.

You can, but most people decide to have a lawyer prepare the agreement. You have to be careful to cover all the issues between you and your spouse, and to 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. Also, each of you should get independent legal advice from your own lawyers 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 this link.

Manitoba Justice has a Family Resolution Service that offers a number of programs, including mediation.  If you and your spouse 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 help you work out  the issues that arise from separation.  You may choose to take your agreement to a lawyer to have it finalized.

Next Steps:

How can I contact For the Sake of the Children?

For the Sake of the Children is now available online.

There is only one ground for divorce in Canada.  You must 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.

One year of separation is the most commonly used ground for divorce.  This is because the grounds of adultery and cruelty may be difficult to prove.

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.

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 King’s Bench Forms at this link.

If you are married and asking for a divorce, you would file a Petition for Divorce (Form 70A) or Joint Petition for Divorce (Form 70A.1), whether or not you are asking for other family relief (support, a parenting order, property division).

If you are not married, 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 King’s Bench Forms at this link.

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 King’s Bench Forms at this link.

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 King’s Bench Rules, Rule 70.06(5) for specific service requirements.

An initiating pleading is one that starts court proceedings.

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 King’s Bench Forms at this link.

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. A statement of claim might be filed if there was a civil dispute involving a family business that had to resolved outside of the family property accounting.

* You can get all of the Court of King’s Bench Forms at this link.

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 your ex-partner 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 King’s Bench Forms at this link.

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 Amended Petition. 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 the other party the Petition, Petition for Divorce, or Notice of Motion to Vary.

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 King’s Bench Forms at this link.

If you do not need permission from the court, you can file a Requisition Form (Form 4E) requesting the amendments.

If you need to obtain leave (permission) from the court you will need to file a Notice of Motion (Form 70Q) and Affidavit (Form 4D) to proceed.

You will also need to prepare:

• a Requisition to note default and set down an affidavit hearing,
• an Affidavit of Petitioner’s Evidence (Form 70M),
• three copies of a Divorce Judgment (Form 70O),
• the Affidavit of Service (Form 70I), 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.

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 anywhere else 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:  

1. 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.
2. File your Forms:
   • Affidavit of Service (if not already filed) (Form 70I),
   • Requisition (Form 4E)
   • Affidavit of Petitioner’s Evidence (Form 70M), and
   • Divorce Judgment (Form 70O) (3 copies).
3. You will also need to provide the court with the two stamped, addressed envelopes for both parties.

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 King’s Bench Forms at this link.

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.

You will also want to make sure that you have made a proper claim for property division and have set out how that claim is going to proceed. You can’t make an application for an accounting or equalization of assets under The Family Property Act after 60 days from when a divorce decree is granted or 60 days from when the divorce takes effect.

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.

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.  They help with filling out forms 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.

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

Yes. You would file a Joint Petition for Divorce (Form 70A.1) to start the proceedings.  In addition, you will need to file:

•  a Requisition (Form 4E),
• Joint Petitioner Affidavit (Form 70M.1),
•  three copies of a Divorce Judgment on Joint Petition for Divorce (Form 70O.1), and
•  two stamped, addressed envelopes, one for yourself and one for your spouse.

The court will mail out the Divorce Judgment once signed by the judge.

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. You must also have clearly communicated to your spouse that you are considering yourself separated as of a certain date.