In New Brunswick, separation and divorce are governed by two different laws: separation falls under provincial statutes like the Marital Property Act (RSNB 2012, c. 107), while divorce falls under the federal Divorce Act (R.S.C. 1985, c. 3, 2nd Supp.). Separation requires no court order, no residency period, and no fee, while a divorce requires one year of residency and a $110 filing fee.
Key Facts: Separation and Divorce in New Brunswick
| Feature | Legal Separation | Divorce |
|---|---|---|
| Filing Fee | $0 (no court filing required to separate) | $110 total ($100 petition + $10 clearance certificate) |
| Waiting Period | None to separate; 1 year of separation needed before a no-fault divorce judgment | 1 year separation ground; uncontested divorces finalize in roughly 4-8 weeks after filing |
| Residency Requirement | None | One spouse ordinarily resident in New Brunswick for 1 year before filing |
| Grounds | Not applicable (no grounds needed to separate) | Marriage breakdown under Divorce Act § 8: 1-year separation, adultery, or cruelty |
| Property Division Type | Equal (deferred community) under Marital Property Act § 2 | Property handled separately under provincial law, not the divorce judgment |
Fee disclaimer: As of June 2026. Verify with the Registrar of the Court of King's Bench, Family Division. Court fees can change without notice.
What Is the Difference Between Separation and Divorce in New Brunswick?
The core difference between legal separation vs divorce in New Brunswick is that separation pauses a marriage while divorce ends it permanently. Separation begins the moment spouses start living separate and apart, with no court order, no fee, and no residency requirement. A divorce legally dissolves the marriage under the federal Divorce Act and is the only path that allows you to remarry.
New Brunswick does not use the term "legal separation" as a formal court status the way some jurisdictions do. In Canada, a couple becomes separated simply by living separate and apart with the intention of ending the relationship. No judge declares you separated. By contrast, divorce is a federal court process that produces a binding judgment dissolving the marriage. The two concepts answer different questions: separation organizes your finances, parenting arrangements, and living situation during the breakdown of the relationship, while divorce formally terminates the legal marriage so that each spouse becomes legally single again. Most New Brunswick couples separate first and divorce later, because the most common divorce ground requires one full year of living apart.
What Is Legal Separation in New Brunswick?
Legal separation in New Brunswick is the state of living separate and apart with the intention to end the relationship, and it requires no court filing, no fee, and no minimum residency period. Spouses can resolve support, parenting arrangements, and property division through a written separation agreement, or by applying to the Family Division of the Court of King's Bench for court orders.
There is no formal "decree of separation" issued by New Brunswick courts. Instead, separation is a factual condition: you and your spouse are separated once you stop living as a couple, even if you remain under the same roof for financial reasons. Under New Brunswick practice, spouses can be considered separated while still sharing a home, provided they lead independent lives and do not present themselves publicly as a couple. During separation, either spouse may apply to the Family Division for an order addressing spousal support, child support, parenting arrangements, decision-making responsibility, and the division of assets and debts. Many couples instead negotiate a separation agreement, a private contract that becomes a type of "domestic contract" under the Marital Property Act. This document should be reviewed by independent lawyers for each spouse to be enforceable and fair.
What Is a Separation Agreement and Is It Required?
A separation agreement in New Brunswick is a private written contract that settles support, parenting arrangements, and property division without going to court, and it is not legally required to be separated. Under the Marital Property Act, a separation agreement is a recognized "domestic contract," and each spouse should have it reviewed by an independent lawyer before signing.
A separation agreement is the most common and cost-effective tool for organizing a New Brunswick separation. It can cover spousal support amounts and duration, child support consistent with the Federal Child Support Guidelines, parenting time, decision-making responsibility, and the division of the matrimonial home, pensions, vehicles, and debts. Because the Marital Property Act presumes an equal 50/50 division of marital property, a well-drafted agreement should explain any departure from that default. Importantly, signing a separation agreement does not require court approval, and it is not necessary to go to court to make the document valid. However, an agreement is not always final: even after signing, a spouse can ask the court to vary the property division if the result was unconscionable or circumstances changed materially. Independent legal advice for each party is the single best protection against an agreement being set aside later.
What Are the Residency Requirements for Divorce in New Brunswick?
To file for divorce in New Brunswick, at least one spouse must have been ordinarily resident in the province for at least one full year immediately before filing, as required by Divorce Act § 3(1). Separation has no residency requirement, so couples can separate immediately regardless of how long they have lived in New Brunswick.
The one-year residency rule is federal and applies identically in all 13 Canadian provinces and territories under section 3(1) of the Divorce Act. "Ordinarily resident" means living in New Brunswick with a settled intention to remain, not merely a temporary visit. You do not need to be a Canadian citizen, and there is no county or municipal residency requirement within the province. You also file based on where you currently live, not where you were married, so a couple married abroad can still divorce in New Brunswick if one spouse meets the one-year test. When children are involved, the Divorce Act directs that the matter proceed in the province where the children ordinarily reside, ensuring the court most familiar with the children handles parenting arrangements and child support. If neither spouse qualifies in New Brunswick, the divorce must be filed in the province where one spouse does qualify.
What Are the Grounds for Divorce in New Brunswick?
New Brunswick has one ground for divorce, marriage breakdown, which is proven in one of three ways under Divorce Act § 8: living separate and apart for at least one year, adultery, or physical or mental cruelty. Approximately 95% of Canadian divorces use the no-fault one-year separation ground because it requires no proof of misconduct.
Under section 8 of the Divorce Act, marriage breakdown is the sole ground for divorce nationwide. The one-year separation route is the no-fault option and the overwhelming choice for New Brunswick couples. You can file a divorce petition before the full year of separation has elapsed, but the court cannot grant the divorce judgment until the entire 12 months of separation is complete. The adultery and cruelty grounds are fault-based and require additional evidence, which adds time and cost, so they are rarely used. New Brunswick recognizes a 90-day reconciliation window: spouses can attempt to reconcile for up to 90 days during the separation year without restarting the clock, which encourages couples to test reconciliation without losing the time already accumulated. This distinction matters because separation begins immediately, but the divorce ground based on that separation only matures after one continuous year.
How Is Property Divided in a New Brunswick Separation vs. Divorce?
In New Brunswick, property is divided equally (50/50) under the provincial Marital Property Act (RSNB 2012, c. 107), not by the federal divorce judgment itself. The divorce judgment ends the marriage but does not automatically split property, and any court application for property division must generally be made within 60 days of the divorce being granted.
This federal-provincial split surprises many couples. The Divorce Act governs the divorce and support framework, but marital property division falls entirely under New Brunswick's Marital Property Act. Under section 2 of that Act, marriage is treated as a partnership of equals, and each spouse is presumptively entitled to an equal share of marital property and an equal share of marital debts. Marital property includes "family assets" such as the matrimonial home, vehicles, household goods, pensions, and investments ordinarily used by the family. Business assets are generally exempt under section 8 unless an exception applies, for example where one spouse unreasonably depleted marital property or where one spouse handled most child care and household duties so the other could build the business. Because the divorce judgment does not resolve property, spouses must address division through a separation agreement or a separate Family Division application, and they should not assume the divorce order settles their finances.
Separation vs. Divorce: Cost and Timeline Comparison
A New Brunswick separation can cost nothing if spouses simply live apart, while a divorce costs $110 in court fees plus any legal costs, and an uncontested divorce is typically finalized within 4-8 weeks of filing once the one-year separation period is met. Contested matters involving disputed property or parenting arrangements can take a year or longer.
| Item | Legal Separation | Uncontested Divorce | Contested Divorce |
|---|---|---|---|
| Court filing fee | $0 | $110 | $110 |
| Certificate of Divorce (for remarriage) | Not applicable | $7 | $7 |
| Typical timeline | Immediate (effective once living apart) | 4-8 weeks after filing | Several months to 1+ year |
| Lawyer cost (typical) | Separation agreement drafting/review | Varies; lower for uncontested | Higher; trial and discovery costs |
| Ends the marriage? | No | Yes | Yes |
Fee disclaimer: As of June 2026. Verify all amounts with the Registrar of the Court of King's Bench, Family Division. The $110 total reflects a $100 petition fee plus a $10 clearance certificate from the Central Registry of Divorce Proceedings.
Which Court Handles Separation and Divorce in New Brunswick?
The Family Division of the Court of King's Bench of New Brunswick handles both separation-related applications and divorce petitions across the province's eight judicial districts. Divorce petitions are filed on Form 72A (or Form 72B for a joint petition), and New Brunswick is officially bilingual, so services are available in English and French.
New Brunswick operates a unified family court system, meaning divorce matters and provincial family law matters, including parenting arrangements, support, and property division, are all heard at the same superior court level. The eight judicial districts are located in Bathurst, Campbellton, Edmundston, Fredericton, Miramichi, Moncton, Saint John, and Woodstock. To start a divorce, you file a Petition for Divorce (Form 72A) or a Joint Petition for Divorce (Form 72B) with the Registrar, paying the fee to the Minister of Finance for the Province of New Brunswick. After the divorce takes effect, you may apply for a Certificate of Divorce (Form 72O) for a $7 fee, which is the official proof required to remarry. For free guidance, PLEIS-NB operates the Family Law Information Line at 1-888-236-2444, offering general information on separation, divorce, support, and parenting matters.
How Do Parenting Arrangements Work During Separation and Divorce?
Under the 2021 Divorce Act amendments, New Brunswick courts use "parenting time" and "decision-making responsibility" rather than "custody" and "access," and all parenting orders are decided on the best interests of the child under Divorce Act § 16.1. These arrangements can be set during separation and are confirmed or modified in the divorce.
The March 1, 2021 amendments (Bill C-78) replaced custody language with child-focused terminology. A parenting order under section 16.1(1) assigns parenting time, which is the time a child spends in a person's care, and decision-making responsibility, which covers significant decisions about health, education, and culture, language, religion and spirituality. The amendments removed the former presumption of maximum contact, so courts now make no presumption about how parenting time or decision-making should be allocated, conducting a fact-based best-interests analysis instead. The reforms also added contact orders under section 16.5, allowing non-parents such as grandparents or former stepparents to apply for time with a child. Parenting arrangements can be settled in a separation agreement during separation and then incorporated into the divorce, or ordered by the Family Division if parents cannot agree.