When Are You Considered Common-Law in Saskatchewan?

Many couples in Saskatchewan live together for years without marrying. At some point, whether because of a breakup, a death or a big purchase, the question comes up: does the law treat us as spouses?

The answer depends on the law you are asking about. This article walks through the main test in The Family Property Act, how time is counted, what a child may or may not change, and the kinds of evidence people usually gather.

This article covers the law of Saskatchewan.

The two-year test under The Family Property Act

Saskatchewan does not use the label "common-law marriage" in the way many people expect. Instead, The Family Property Act defines who counts as a spouse. The definition includes an unmarried person who is cohabiting, or has cohabited, with another person as spouses continuously for not less than two years.

The Saskatchewan Court of Appeal and the Supreme Court of Canada have dealt with this Act. In Anderson v. Anderson, 2023 SCC 13, the Supreme Court confirmed that the Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more.

Two words in that test matter most: "as spouses" and "continuously". Sharing an address is not always enough. The question is whether you lived together in a spousal relationship, and whether that went on without a real break.

How the time is counted

The two years is a period of living together as spouses, not a date on a calendar that every couple hits automatically. A couple who moved in together, split for a stretch and then got back together may have a harder time showing continuous cohabitation than a couple who never separated. Whether a particular gap breaks the period depends on the facts, so it is worth getting advice if your history is not simple.

The same two-year idea shows up for people who have separated. For property that was acquired more than 24 months after cohabitation ended, unmarried partners get an exemption from sharing, although the court can override an exemption where exempting the property would be unfair and inequitable. So the timeline matters at both ends of a relationship.

Does having a child change the period?

Many people hear that a child shortens the waiting time. Do not rely on that. Sources disagree on this point, and the rule you can safely count on is the two-year period for The Family Property Act. Whether a child changes the period, and for which purpose, is something to confirm with a lawyer before you make decisions based on it.

It is also worth separating property from parenting. The Children's Law Act, 2020 sets out decision-making responsibility and parenting time for unmarried parents, and for married parents who are not seeking a divorce. Whether any cohabitation period matters for parenting depends on your situation, so it is worth confirming with a lawyer.

What proof tends to matter

Records from your time together can be useful if the other person ever disagrees that you lived together as spouses. How that is assessed depends on your situation, so it is worth confirming with a lawyer. People commonly gather:

• Lease, mortgage or utility records showing a shared address and the dates.
• Tax returns, benefit forms or insurance papers that list each other as partners.
• Joint bank accounts, shared bills and records of who paid for household costs.
• Emails, messages, photos and travel records that show life as a couple.
• Statements from family, friends or neighbours who saw you living as a couple.

No one item decides the question. A calm, dated timeline of where you each lived and when is often the most useful starting point.

Why it matters for wills, and what to do next

Being treated as a spouse can affect your will. Under The Wills Act, 1996, a gift to a former spouse and the appointment of that person as executor are revoked on divorce unless the will says otherwise. For unmarried spouses, that happens once they have stopped cohabiting in a spousal relationship for at least 24 months. A will is also not changed by marriage or by two or more years in a spousal relationship. If you are common-law, review your will rather than assuming the law will fix it for you.

• Write down the date you moved in together and any dates you lived apart.
• Collect documents that show a shared address and shared finances.
• Check your will and beneficiary designations.
• Do not rely on rumours about a child shortening the period.
• Speak with a lawyer if the other person disputes the relationship or if a breakup is near.

Frequently asked questions