What is a Limitation Period?
A limitation period is a legally specified timeframe during which a person can initiate legal proceedings. Once this period expires, the person may lose the right to file a claim.
In the context of divorce, it determines how long one has to file for divorce after separation or after the grounds for divorce arise.
In the context of separation, it determines how long one has to file for other remedies besides divorce.
It is really important to discuss your situation with a lawyer as soon as possible to ensure that you don’t miss any limitation periods.
Let’s first talk about divorce. What are the important limitation periods there?
In Alberta, there are three grounds for divorce as established by the Divorce Act:
- Separation for at least one year: The most common ground, requiring a couple to live apart for at least 12 consecutive months.
- Adultery: This requires proof that one partner has been unfaithful.
- Cruelty: This refers to physical or mental cruelty that makes it intolerable to continue living together.
One-Year Separation: If you are seeking a divorce based on one year of separation, there is no specific limitation period. You can apply for divorce at any point after the year has passed, even if the separation lasted longer than a year.
Divorce Based on Adultery or Cruelty: If the grounds for divorce are adultery or cruelty, you generally have a limitation period of two years from the date you became aware of the grounds. This means you must file for divorce within two years of discovering the infidelity or the abusive behavior.
Apply as Soon as Possible: Although there might not be a strict limitation period for all types of divorce, it is often advisable to initiate the process as soon as the decision to divorce is made. Delaying can complicate matters, especially regarding asset division and child custody issues.
What are some limitation periods for the other aspects of separation?
For Division of Assets and Debts:
Two-Year Limitation: Generally, under the Family Property Act in Alberta or the Family Property Act in Saskatchewan, a spouse must make a claim for the division of property within two years of the divorce being finalized. If you fail to do so within this time frame, you may lose the right to claim any share of the marital property.
For Common-Law Relationships: If the relationship is not formalized by marriage (common-law), it is important to know that different rules may apply. The limitation period may also be two years, but it starts from the date of separation, not from when the relationship was dissolved.
Claims for Spousal Support or Other Claims:
It is important to note that claims for spousal support are also subject to a two-year limitation period from the date of divorce or separation, which can overlap with property division claims.