Family Law Essentials
This publication explains basic information about family law on Prince Edward Island. It includes information about spouses, separation, divorce, parenting, and family violence. It also includes information about how family law issues may affect immigration status.
What is a spouse?
Family law says spouses are:
- Two people who are legally married, or
- Two people who have lived together in a sexual relationship for 3 years or more (also called common-law spouses), or
- Two people who are living together in a sexual relationship and are the natural or adoptive parents of one or more children (also called common law spouses).
Spouses are people of any gender.
To be legally married, you must have a recognized marriage ceremony. A recognized marriage ceremony must be performed by:
- A member of the clergy, or
- A judge, or
- A person with a license to perform marriages on Prince Edward Island (usually called a ‘marriage commissioner’).
Married spouses are spouses who had a recognized marriage ceremony.
Unmarried spouses are spouses who have not had a recognized marriage ceremony. Unmarried spouses are also called common-law spouses.
Some federal government programs, like Immigration, Refugees and Citizenship Canada (IRCC) or Canada Revenue Agency (CRA), have different definitions of unmarried spouses. For example, the CRA considers you to be unmarried spouses after one year of living together as spouses. This is different from how the PEI Family Law Act defines unmarried spouses.
Do married and unmarried spouses have the same rights?
It depends. Unmarried spouses and married spouses have similar:
- Parenting rights and responsibilities.
- Entitlements to spousal support.
Unmarried spouses and married spouses do not have the same rights when dividing the property they collected during the relationship.
How do married and unmarried relationships end?
Separation is when spouses live separately and apart. Living separately and apart means at least one spouse does not want to live together as spouses. You must tell your spouse that you are separating from them.
Divorce is the legal end of a marriage.
Separation automatically ends unmarried relationships. Unmarried spouses do not get a divorce.
Married spouses may separate. Canada’s Divorce Act says that separation for married spouses begins when you and your spouse begin living separately and apart. But, until the court grants a Certificate of Divorce, you are still legally married.
What if we want to separate but we cannot afford to live separately?
You can be legally separated and still live in the family home. For example, sleeping in different rooms and not eating together.
Separation automatically ends unmarried relationships. You do not have to take any further action to make your separation “legal.” If you are married, separating from your spouse does not mean you are divorced.
When can I get a divorce?
You can get divorced after:
- A one-year separation. You can start the process of filing for divorce before the one year is up, but you cannot complete your divorce until you have been separated for at least one year. The one-year period of separation must be uninterrupted and continuous up to the time that the Divorce Judgment is granted. However, the Divorce Act does allow for efforts at getting back together, called trial cohabitation. Trial cohabitation is an effort to get back together that is 90 days or less during that one-year period. It does not interrupt the one-year period of separation.
- Adultery committed by the other spouse. Adultery is a voluntary sexual relationship between a spouse and someone who is not their spouse. You will have to provide proof of your spouse’s adultery in court. You cannot get a divorce because of your own adultery.
- Mental or physical cruelty committed by the other spouse. Cruelty may be physical or mental, and it must be of such a kind as to make it intolerable to remain together. You will have to provide proof in court.
In Canada, most people get divorced after they have been separated for one year.
Can I get divorced if my spouse does not agree?
Yes. Even if your spouse does not agree to the divorce, you can ask the judge to grant you a divorce. Your spouse cannot force you to stay in the marriage.
Can I get divorced without my spouse knowing?
No, you cannot get divorced without your spouse knowing. Your spouse will get the chance to see the divorce paperwork and reply.
Can I start a new relationship before my divorce?
You may enter an unmarried relationship before you divorce. But it is illegal to get married to another person before you get a Certificate of Divorce from the court.
If I was married in another country, does PEI recognize it?
Usually, yes. If your marriage was valid in the province, territory, or country where it was performed, PEI will recognize it as well. But there are some cases where PEI will not recognize your marriage. For example, if you are under the age of 16 and get married in a country where that is legal, your marriage will not be recognized on PEI.
I was married in another country/ province. Can I get divorced on PEI?
Yes, you can get divorced on PEI if:
- Your marriage is valid on PEI, and
- You or your spouse have lived on PEI for at least 365 days (one year).
If you were married in another country, that country may not recognize your divorce.
Can I get divorced on PEI if I am not a Canadian citizen?
Yes. You do not need to be a Canadian citizen to get divorced on Prince Edward Island.
I got divorced in another country or province. Is my divorce valid on PEI?
Yes. Your divorce is valid if you or your spouse lived in that country or province for at least one year before you started divorce proceedings.
What is the difference between a contested and uncontested divorce?
An uncontested divorce is a divorce where you and your ex-spouse agree on all the terms of the divorce. It is filed with the court and reviewed by a judge, but no court hearing is necessary.
An uncontested divorce can take between three and six months to complete. You may not need to hire lawyers for an uncontested divorce. But legal advice is always recommended before signing legal documents.
A contested divorce is a divorce where you and your ex-spouse cannot agree on the terms of the divorce. For example, you may disagree about parenting or about who will live in the family home.
A contested divorce often takes much longer than an uncontested divorce. If the divorce goes to a court hearing, you may have to appear before a judge at the courthouse.
What are the division of property rules for married spouses?
The value of assets acquired during your marriage (and that you still own) is divided equally between spouses. The increase in value of assets owned at the date of the marriage (and that you still own) is divided equally between spouses. Debts are also divided equally.
If a 50/50 division does not work for your family, spouses can agree to an unequal division of property. A judge may order an unequal division of property in some situations.
It is important to get legal advice from a lawyer if:
- You and your spouse want to divide your assets unequally.
- You have family property in another country.
- You received a gift or inheritance from a third person, damages for personal injury, or an insurance payment.
What are the division of property rules for unmarried spouses?
The equal division of property rule does not apply to unmarried spouses. When unmarried spouses separate, the person whose name is on the deed or proof of purchase of the asset may be the only one entitled to it.
Unmarried spouses are only responsible for each other’s debts if they co-signed for the debt, or the debt is in both names. You and your spouse can agree to divide property and debts.
Sometimes, at the end of an unmarried relationship, most of the assets belong to just one person. For example:
- One person may have done all of the housework and parenting while the other collects money and property.
- One person may spend a lot of time and money improving a house that their spouse owns.
If you have put time and/or money into an asset owned by your spouse, you may take legal action to get a share of the value of the asset. Consult with a lawyer.
Unmarried spouses can sometimes divide pensions from employers or governments. Ask the pension provider for details.
Can my sponsor make me leave Canada?
If you are a permanent resident, your spouse, partner, or sponsor cannot make you leave Canada. Only Canadian immigration officials can order a person to leave the country. This can only happen after an immigration hearing takes place. You will not be ordered to leave the country just because your sponsor wants you to leave.
Immigration, Refugees and Citizenship Canada (IRCC) will not make you leave Canada simply because your relationship ended.
What if my spouse is my sponsor and we separate or divorce?
If your spouse is your sponsor, you still have the right to end your relationship.
If you are a permanent resident, immigration officials will not ask you to leave Canada if you separate from your spouse (unless they believe the marriage was not genuine).
Your sponsor was required to sign a sponsorship undertaking. This means that your sponsor must continue to support you for three years. Separation or divorce does not change this commitment.
What if I am not a permanent resident and I leave my spouse?
Consult with an immigration lawyer about how a change in your marital status may affect your right to stay in Canada.
What if my sponsorship breaks down?
If you are a permanent resident, IRCC will not take any action against you (or your children) if your sponsorship breaks down. You will not be deported. Consult with an immigration lawyer for legal advice.
Can I go to family court if I am not a Canadian citizen?
Yes. Immigrants have similar rights to anyone else to use Canadian courts to deal with their family law issues. A person married outside Canada can go to court in Canada to resolve family law matters.
You can still apply for spousal support if you separated before your immigration to Canada is complete.
For more information for newcomers to Canada, visit the Immigration, Refugees and Citizenship Canada website.