Do You Have to File Anything to Be Legally Separated in Saskatchewan?

Many people ask whether they have to register or file something before they are officially separated. You may be married or living common-law, and you may simply want to know where you stand before you move out, sign a lease or talk to your spouse.

This article explains what the law looks at when it asks whether you are separated, how that connects to divorce, and when court steps come into the picture. It is general information, not advice on your situation.

This article covers the law of Saskatchewan.

Is there a form to file to become separated?

Whether anything needs to be filed for your separation depends on your situation, so it is worth confirming with a lawyer. When the Divorce Act talks about spouses living separate and apart, it looks at whether you lived apart and whether one of you intended to live separate.

That means the Act's test focuses on how you have lived and what you intended. Whether any particular step is needed for a particular purpose, such as a benefit, a tax filing or a financial account, depends on the facts and is worth confirming with a lawyer or accountant.

What makes a separation real for divorce purposes

The only ground for divorce is breakdown of the marriage. It is established either if you have lived separate and apart for at least one year immediately before the divorce is determined and were living apart when the proceeding began, or if the other spouse has committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable.

The law treats spouses as living apart for any period when they lived apart and one of them intended to live separate. Because intention matters, spouses can be separate and apart while still living under the same roof. A short return to the relationship will not necessarily reset the clock: a period of resumed cohabitation of up to 90 days, made mainly to try to reconcile, does not interrupt or end the separation period.

• You lived apart, and at least one of you intended to live separately.
• You can be under the same roof and still be separated.
• A reconciliation attempt of up to 90 days does not break the period.
• The full year must be complete when the divorce is determined, not when you file.

When divorce comes in

Separating and divorcing are different things. Separating is a change in how you live. A divorce is a court order, and a divorce takes effect on the 31st day after the day the judgment granting it is rendered, although a court can order an earlier effective date in special circumstances if the spouses agree not to appeal.

A Saskatchewan court can hear your divorce if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. Only one of you has to meet that test. You do not have to wait out the full year of separation before starting, as long as you were living apart when the proceeding began and the year will be complete before judgment.

There is also a way to divorce without waiting a year: if the other spouse has committed adultery or treated you with physical or mental cruelty that makes living together intolerable, that can establish breakdown. You cannot rely on your own adultery or cruelty.

If both of you agree and there are no disputes, the Court of King's Bench offers a Self-Help Divorce Kit for uncontested divorces, with instructions and one set of forms, available through the Family Law Information Centre at 306-787-5837 or 1-888-218-2822.

When court steps come in even without a divorce

Separation can raise questions about children, support and property whether or not anyone seeks a divorce. For unmarried parents and for married parents not seeking divorce, The Children's Law Act, 2020 sets out decision-making responsibility and parenting time.

On property, The Family Property Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more. Family property is generally divided equally unless the court finds that would be unfair and inequitable. Whether a child changes the two-year period for common-law partners is something to confirm with a lawyer.

If you cannot agree and need a court, family matters coming to court in Saskatchewan are required to attempt a family dispute resolution process by the close of pleadings before continuing. You can apply for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.

If you are afraid for your safety, a different route exists. A designated justice of the peace can grant an emergency intervention order without notice where interpersonal violence occurred and the matter cannot wait for a judge. It can give you exclusive occupation of the residence regardless of ownership and bar contact.

What to do next

• Write down the date you began living apart and who intended to separate.
• Keep records of any attempt to reconcile, with dates, so the length of time is clear.
• Gather documents: marriage or cohabitation details, income records, property and debt information.
• Decide whether you can reach agreement on children, support and property, and consider putting it in writing.
• If you want a divorce, think about whether you meet the residence test and which route fits.
• Speak with a lawyer about any benefit, tax or safety question that depends on your situation.

Frequently asked questions