How Property Is Divided in a Divorce in Saskatchewan

If you are starting a divorce in Saskatchewan, one of your first questions is probably what happens to the house, the savings, the vehicles and the debts. In Saskatchewan, The Family Property Act sets out how family property is distributed between spouses.

This article explains the basic rules of property division and then walks through the main steps of a divorce, from deciding where to file to the day the divorce takes effect. Your own situation may turn on details, so treat this as a map rather than a verdict.

This article covers the law of Saskatchewan.

Who the Family Property Act covers

The Family Property Act applies to married spouses. It also applies to unmarried spouses who have lived together as spouses continuously for at least two years.

That means a divorce is not the only way property gets divided. The same Act governs people who were never married but meet the two-year test. Whether a child changes that two-year period is something to confirm with a lawyer.

The starting point: an equal split

Under section 21 of the Act, 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 looks at factors such as any written agreement between the spouses and how long they lived together.

The family home has a stricter test. Equal distribution applies unless the court is satisfied it would be unfair and inequitable, looking only at an extraordinary circumstance, or unless the spouse with the children would otherwise be treated unfairly.

Property that may be left out

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 exemption does not apply to the family home or household goods.

• A 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.
• How debts, pensions and business interests are counted depends on the facts and is worth confirming with a lawyer or accountant.

The divorce process step by step

The grounds and the court's authority to grant a divorce come from the Divorce Act, while the division of family property is distributed under The Family Property Act. These are the main stages of the divorce.

• Check where you can file. 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.
• Confirm the ground. The only ground is breakdown of the marriage. It is shown by the spouses living separate and apart for at least one year immediately before the divorce is determined, having also been living apart when the proceeding began, so you can file before the year is complete if it will be complete before judgment. The other route is the other spouse's adultery, or physical or mental cruelty that makes continued cohabitation intolerable, and you cannot rely on your own adultery or cruelty. You can be separate and apart under the same roof if one of you intends to live separately.
• Prepare the paperwork. The Court of King's Bench offers a free Self-Help Divorce Kit for uncontested divorces, requested from the Family Law Information Centre at 306-787-5837 or 1-888-218-2822. Family proceedings fall under Part 15 of the King's Bench Rules, which includes the Petition (Form 15-8A).
• Serve the other spouse. The Petition form says it is to be served within 6 months after it is issued unless ordered otherwise. Service can be proved by an affidavit of service in KB Form 12-15 when no acknowledgment of service is available.
• Try dispute resolution. Since July 1, 2022, family matters coming to court in Saskatchewan must attempt a family dispute resolution process by the close of pleadings. You can apply for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.
• Finish the divorce. In an uncontested divorce there is an application for judgment (Rule 15-76) and an affidavit (Rule 15-78), followed by the judgment and a Certificate of Divorce. The divorce takes effect on the 31st day after the day the judgment is rendered, though a court can order an earlier date in special circumstances if the spouses agree not to appeal.

If you have children and have not fully agreed on parenting, you must complete a parenting course.

What to do next

• List everything you and your spouse own and owe, and note when and how each item was acquired.
• Gather documents: bank and investment statements, property records, pension statements, tax returns and any written agreement.
• Note the date you separated and whether you lived apart under one roof.
• Ask a lawyer about time limits for starting a property claim, since they are worth confirming early.
• Consider mediation or another dispute resolution process before heading to court.

Frequently asked questions