- Unmarried partners who lived together as spouses continuously for at least two years are covered by The Family Property Act, like married spouses.
- Family property is divided equally unless the court finds equal division would be unfair and inequitable, and the test is stricter for the family home.
- Some property, such as inheritances, gifts from third parties and property owned before the relationship, can be exempt, but the family home and household goods cannot.
Separating from a partner you did not marry can feel like a legal grey area, especially when the house, savings and debts are in one name or mixed together. In Saskatchewan, the rules for dividing property are not limited to married couples.
This article explains who is treated as a spouse under The Family Property Act, how property is usually divided, what can be exempt, and what to confirm with a lawyer about pensions and debts.
This article covers the law of Saskatchewan.
Who counts as a spouse under The Family Property Act
Under The Family Property Act, the word spouse includes an unmarried person who is cohabiting, or has cohabited, with another person as spouses continuously for not less than two years. The Supreme Court of Canada decision Anderson v. Anderson, 2023 SCC 13, confirms that the Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more.
Whether a child shortens that period is not something to assume. If you lived together for less than two years, or your living arrangements were on and off, speak with a lawyer about whether the Act applies to you.
The starting point: an equal division
Family property is distributed equally between spouses unless the court finds that an equal distribution would be unfair and inequitable. In deciding that, the court considers factors including any written agreement between the spouses and how long they cohabited.
Equal division does not mean each item is cut in half. It means the overall value is shared, and that can be done by one person keeping an asset and the other receiving something of equal value.
For the family home, the test for an unequal split is stricter. Equal distribution applies unless the court is satisfied it would be unfair and inequitable, having regard only to an extraordinary circumstance, or unless the spouse with the children would otherwise be treated unfairly. The Court of Appeal in Phillips v. Phillips held that this threshold is more onerous than the one for other family property.
What may be exempt from division
Section 23 of The Family Property Act exempts certain property from distribution. The exemptions cover property owned before the relationship, gifts from third parties and inheritances. The exemption expressly excludes the family home and household goods.
| Type of property | General treatment |
|---|---|
| Owned before the relationship | May be exempt |
| Gift from a third party | May be exempt |
| Inheritance | May be exempt |
| Family home and household goods | Not covered by the exemption |
The court can override an exemption where exempting the property would be unfair and inequitable. For unmarried partners, property acquired more than 24 months after cohabitation ended is also exempt.
Savings, pensions and debts
How your bank accounts, investments, vehicles, pensions and debts are treated depends on the details of each asset or debt and on your situation, so it is worth confirming with a lawyer rather than assuming. In general, family property is distributed equally between spouses unless the court finds an equal distribution would be unfair and inequitable.
Some property can be exempt from distribution, such as property owned before the relationship, gifts from third parties and inheritances. The court can override that exemption where exempting the property would be unfair and inequitable.
An agreement you made in writing can matter. The court considers any written agreement between the spouses when deciding whether equal division would be unfair.
What to do next
- Write down the date you began living together and the date you separated.
- List your assets and debts, noting who holds title and when each was acquired.
- Mark anything you believe was owned before the relationship, received as a gift or inherited.
- Gather any written agreements, statements and property records.
- Avoid selling or transferring major assets until you have advice.
- Speak with a lawyer about time limits, pensions and debts for your situation.
If the matter heads to court, family law matters anywhere in Saskatchewan are required to attempt a family dispute resolution process by the close of pleadings. You can apply for an exemption where there has been interpersonal violence, a child has been abducted by the other parent, or there is other urgency.
Frequently asked questions
Do common-law partners in Saskatchewan have the same property rights as married spouses?
Under The Family Property Act, spouse includes an unmarried person who has cohabited with another as spouses continuously for not less than two years. Those partners are covered by the same Act as married spouses. There are some differences, such as an extra exemption for property acquired more than 24 months after cohabitation ended.
Is the family home always divided equally?
Equal distribution is the rule, and for the family home the test for an unequal split is stricter than for other property. A court may depart from equal only where it is satisfied that would be unfair and inequitable, having regard only to an extraordinary circumstance, or where the spouse with the children would otherwise be treated unfairly.
Does an inheritance get divided?
Inheritances are among the categories of property that can be exempt. The court can override the exemption where exempting the property would be unfair and inequitable. The exemption does not cover the family home or household goods.
What happens to the pension and the debts?
That depends on the type of pension plan, the kind of debt and how each was acquired. A lawyer can review the documents and explain how they are likely to be treated in your situation.
Sources
- Government of Saskatchewan – Family Mediation — saskatchewan.ca
- The Family Property Act, S.S. 1997, c. F-6.3 (Publications Saskatchewan) — publications.saskatchewan.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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