- Property owned before the relationship is generally exempt, but the exemption expressly excludes the family home and household goods.
- The family home is normally split equally, and the test for an unequal split is stricter than for other property.
- The Act covers married spouses and common-law partners who lived together continuously for two years or more.
Many people buy a house before they marry or move in with a partner. Years later the relationship ends, and the question is whether that house now has to be shared. It is natural to assume a home you owned first stays yours.
In Saskatchewan the answer is often different for the family home than for other things you owned beforehand. This article explains the general approach under The Family Property Act, and why section numbers and wording are worth checking against the consolidated Act.
This article covers the law of Saskatchewan.
Who the Act covers
Under The Family Property Act, a spouse includes an unmarried person who is cohabiting or has cohabited with another as spouses continuously for not less than two years. Anderson v. Anderson, 2023 SCC 13, confirms the Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more.
So whether you married or lived together as common-law partners, the same basic rules about the home can apply to you, as long as you meet the definition.
Property owned before the relationship is usually exempt, but not the family home
Section 23 of the Act exempts certain property from distribution. The exemptions cover property owned before the relationship, gifts from third parties and inheritances. The same section expressly excludes the family home and household goods from that exemption.
In practical terms, a house you owned before the relationship does not get the automatic protection that other pre-owned property gets once it becomes the family home. It goes into the same pool as the home you bought together.
How the family home is divided
Family property is generally distributed equally between spouses unless the court finds an equal distribution would be unfair and inequitable. For the family home, section 22 sets a stricter test.
Equal distribution of the home 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.
| Type of property | General starting point | Test to depart from it |
|---|---|---|
| Family home, even if owned before the relationship | Equal distribution | Extraordinary circumstance, or the spouse with the children would otherwise be treated unfairly |
| Other family property | Equal distribution | Equal split would be unfair and inequitable |
| Pre-owned property that was not the family home, such as a cottage or investment property | Can stay exempt | Court can override if exempting it would be unfair and inequitable |
A cottage or investment property is different
A property you owned before the relationship that never became the family home is treated differently. It can remain exempt under section 23, although the court can override the exemption where exempting the property would be unfair and inequitable.
Whether a particular property counts as the family home depends on your situation, so it is worth confirming with a lawyer. A lawyer can help you assess how a particular property would likely be classified.
Agreements and what to do next
A written agreement between the spouses is one of the factors the court considers when deciding whether an equal distribution would be unfair and inequitable. If you are planning to move in with someone or marry, a written agreement about a home you already own is worth discussing with a lawyer.
- Gather the date you bought the home, the title, and the mortgage records.
- Write down the dates you married or began living together.
- Collect any written agreement between you and your partner.
- Note any other property owned before the relationship, such as a cottage, and how it was used.
- Ask a lawyer to check the current consolidated Act, since section numbers and wording should be confirmed.
- Get advice before you sign anything or make decisions about selling or transferring the home.
Frequently asked questions
I owned my house before we married. Is it protected?
Not automatically. The exemption for property owned before the relationship expressly excludes the family home and household goods. The family home is normally divided equally unless the stricter test for an unequal split is met.
What counts as an extraordinary circumstance?
For the family home, an unequal split requires the court to be satisfied it would be unfair and inequitable, having regard only to an extraordinary circumstance, or that the spouse with the children would otherwise be treated unfairly. Phillips v. Phillips held that this threshold is more onerous than for other family property. What qualifies depends on the facts, so a lawyer can give a view on your situation.
Does this apply if we were common-law?
It can. The Act covers unmarried partners who cohabited continuously for not less than two years. Anderson v. Anderson, 2023 SCC 13, confirms this.
Can a written agreement change the result?
A written agreement between the spouses is one factor the court considers when deciding whether equal distribution would be unfair and inequitable. How much weight it gets depends on the circumstances, so have a lawyer review it.
Sources
- 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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