Living Separate and Apart Under One Roof in Saskatchewan

Many couples cannot afford two homes, or need to stay under one roof because of children, a lease or a mortgage. If that is you, you may wonder whether you can still count as separated for a divorce.

Under the Divorce Act the answer can be yes. This article explains the rule, how the one-year period is counted, what evidence tends to help, and what else to sort out while you share a home.

This article covers the law of Saskatchewan.

Can you be separated in the same house?

Yes, it is possible. Section 8(3) of the Divorce Act allows spouses to be separate and apart while living under the same roof, if one of them has the intention to live separately.

Spouses are treated as living apart for any period when they lived apart and one of them had the intention to live separate. The focus is on how you actually live and on intention, not only on two addresses.

How the one-year period works

The usual route to a divorce is that 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. The year must be complete when the divorce is decided, so a petition can be filed before the year has run if it will be complete before judgment.

Trying to reconcile does not necessarily wipe out your progress. A period of resumed cohabitation of up to 90 days, made mainly to reconcile, does not interrupt or end the separation period. If you have been back together longer than that, or for other reasons, the answer depends on the facts and is worth confirming with a lawyer.

Evidence that can help

The Act does not give a checklist of proof for same-home separation, so what helps depends on your situation. Courts generally want to see that your lives really became separate. Ideas to consider include:

• A written note or message that states the date one of you told the other the marriage was over.
• Separate bedrooms and an end to sharing a bed.
• Separate meals, laundry and household tasks, where practical.
• Separate finances, such as individual accounts and a clear split of household bills.
• Not attending social events or family gatherings together as a couple.
• Changes you made for official purposes, such as updating records, if appropriate for your situation.

Keep copies of messages and records in a safe place that your spouse cannot access. If your spouse disputes the date of separation, this material can matter. If your spouse agrees, a short written statement of the date can still be useful.

Other things to sort out while sharing a home

Separation under one roof can be tense. If you disagree about parenting, support or property, Saskatchewan expects you to try to resolve it. The Divorce Act says parties shall try to resolve matters through a family dispute resolution process to the extent appropriate. Since July 1, 2022, family law matters coming to court in Saskatchewan are required to attempt family dispute resolution by the close of pleadings before continuing with further court proceedings. A person can apply for an exemption where there has been interpersonal violence, a child abduction by the other parent, or other urgency.

Where parents have not fully agreed on parenting, they must complete a parenting course. The Parenting After Separation Program has two online courses, one standard and one for high-conflict families.

If staying in the home is not safe, an emergency intervention order is possible. A designated justice of the peace can grant one without notice if satisfied interpersonal violence occurred and the matter is too urgent to wait for a judge. It can give the victim exclusive occupation of the residence regardless of ownership, direct a peace officer to remove the respondent, and bar contact.

What to do next

• Decide and record the date at least one of you decided to live separately.
• Set practical house rules for space, money, chores and children.
• Collect the evidence ideas above and store copies safely.
• Do not assume that a short reconciliation attempt resets everything; the 90-day rule is the one the Act mentions.
• Talk to a lawyer about parenting, support and property before the year is up, and right away if you do not feel safe.

Frequently asked questions