How Long Must You Live in Saskatchewan Before Filing for Divorce?

You may have just moved to Saskatchewan, or come back after time away, and now your marriage has ended. Before anything else you probably want to know whether a Saskatchewan court can hear your divorce yet.

The answer comes from the federal Divorce Act. This article explains the residence rule in plain words, who has to meet it, and what happens with support and parenting issues if you do not meet it.

This article covers the law of Saskatchewan.

The one-year rule

A court in a province can hear a divorce if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts. So the clock is counted backward from the day the divorce case is started. The question is whether one spouse has been habitually resident in the province for the full year just before that day.

The word "immediately" matters. A year of living in Saskatchewan some time ago, followed by a move away, does not meet the test on its own. If you are a returning resident, the question is whether you have been habitually resident here for the full year just before the case begins.

Only one spouse has to qualify

You do not both need to have lived here for a year. Only one spouse has to meet the one-year test. If your spouse has lived in Saskatchewan for the full year, they meet it even if you arrived last month.

The Act also uses the words "habitually resident", not "ordinarily resident". Some people use "ordinary residence" casually, but the wording of the Act is what a court applies. What counts as habitual residence can depend on your particular facts, such as where you live, work and keep your home, so a lawyer can help if your situation is mixed.

If a case is started in two places

Sometimes both spouses start a divorce, in different courts. If two divorce proceedings are started on different days in different courts, the court where the first one was started has exclusive jurisdiction. The later proceeding is treated as discontinued unless the first is discontinued.

This is one reason the timing of filing can matter if a spouse lives in another province or country. It is worth getting advice before you or your spouse files anywhere.

Support and parenting orders are different

The one-year rule applies to the divorce itself. Orders for support and parenting under section 4 of the Act, called corollary relief, can be heard by a court of the province where either former spouse is habitually resident when the proceeding starts. They can also be heard where both former spouses accept that court's jurisdiction.

• Divorce itself: one spouse resident in the province for at least one year before the case starts.
• Support and parenting orders: either former spouse habitually resident when the proceeding starts, or both accept the court's jurisdiction.

Residence is only the first step

Meeting the residence test only means a Saskatchewan court can hear the case. The only ground for divorce is breakdown of the marriage. It is established if the spouses 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 the applicant with physical or mental cruelty that makes continued cohabitation intolerable. An applicant cannot rely on their own adultery or cruelty.

The year of separation must be complete when the divorce is determined, not before filing, so a petition can be filed before the full year has run if the year will be complete before judgment. Spouses can be separate and apart while living under the same roof if one of them intends to live separately. A period of resumed cohabitation of up to 90 days, made mainly to reconcile, does not interrupt or end the separation period.

Once a divorce is granted, it takes effect on the 31st day after the day the judgment is rendered. A court can order an earlier date in special circumstances if the spouses agree not to appeal.

What to do next

• Write down the date you or your spouse became a Saskatchewan resident and count one year back from the day you plan to file.
• Gather proof of residence such as a lease, utility bills, a driver's licence or tax filings.
• Find out whether your spouse has started a case anywhere else.
• If the year is not complete, ask a lawyer about your options for support or parenting issues in the meantime.
• Remember that separate rules apply to the grounds for divorce, including the one-year separation period.

Family law matters coming to court anywhere in Saskatchewan are required to attempt a family dispute resolution process by the close of pleadings before continuing with further court proceedings. A person can apply to the court for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.

For an uncontested divorce, the Court of King's Bench offers a free Self-Help Divorce Kit, requested from the Family Law Information Centre at 306-787-5837 or 1-888-218-2822. The Petition form states it is to be served within 6 months after it is issued unless ordered otherwise.

Frequently asked questions