Grounds for Divorce in Saskatchewan: Separation, Adultery, Cruelty

If you are thinking about ending your marriage, one of the first questions is what reason the court will accept. The law asks a fairly simple question: has the marriage broken down?

This article explains the ground for divorce under the federal Divorce Act, the ways it can be shown, and a few related points the court checks before granting a divorce. It is general information, not advice on your situation.

This article covers the law of Saskatchewan.

Marriage breakdown is the only ground

Under section 8(1) of the Divorce Act, the only ground for divorce is breakdown of the marriage. There is no menu of other reasons to choose from. Instead, the Act says when breakdown is considered established.

Under section 8(2), breakdown is established if the spouses have lived separate and apart for at least one year, or if the other spouse has committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable.

Living separate and apart for one year

This is the route most people use. The spouses must have lived separate and apart for at least one year immediately before the divorce is determined, and they must have been living apart when the proceeding began.

The year needs to be complete when the divorce is decided, not before you file. That means a petition can be filed before the full year has run, as long as the year will be complete before judgment.

The Act also explains how the year is counted. Spouses are treated as living apart for any period when they lived apart and one of them intended to live separate. A period of resumed cohabitation of up to 90 days, made mainly to try to reconcile, does not interrupt or end the separation period. Spouses can also be separate and apart while living under the same roof, if one of them intends to live separately.

Adultery and cruelty

If the other spouse has committed adultery, or has treated you with physical or mental cruelty that makes continued cohabitation intolerable, the court can find the marriage has broken down without you waiting for the one-year separation.

There is an important limit: you cannot rely on your own adultery or cruelty. Whether the facts you have meet the standard of intolerable cohabitation depends on the details, and that is worth discussing with a lawyer before you build a case around it.

What else the court checks

Proving breakdown is not the only step. A Saskatchewan court can hear a divorce if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. Only one spouse has to meet that test.

• The court must be satisfied there has been no collusion. Agreements about separation, support, property or parenting are not collusion.
• The court must also be satisfied there is no possibility of reconciliation, unless that would clearly be inappropriate.
• A divorce takes effect on the 31st day after the judgment is rendered. In special circumstances, if the spouses agree not to appeal, a court can order an earlier date.

Support and parenting orders connected to the divorce can be heard by a court of the province where either former spouse is habitually resident when the proceeding starts, or where both accept that court's jurisdiction.

What to do next

• Write down the date you and your spouse began living separate and apart, and who intended the separation.
• Confirm that at least one of you has lived in Saskatchewan for a full year.
• If the divorce is uncontested, ask the Family Law Information Centre (306-787-5837 or 1-888-218-2822) for the Court of King's Bench Self-Help Divorce Kit, which comes with instructions and one set of forms.
• Think about parenting, support and property early, because the divorce itself does not settle them automatically.
• Talk to a lawyer before relying on adultery or cruelty, since these allegations raise harder questions.

Frequently asked questions