When Is a Couple Common-Law in Saskatchewan? The Two-Year Rule

Many Saskatchewan couples live together for years without marrying and wonder whether the law treats them as spouses. The answer depends on which law is asking, and the question usually comes up when the relationship ends or when one partner dies.

This article focuses on the two-year rule in The Family Property Act and a few related time periods. It does not cover every statute, and a lawyer can confirm how the rules apply to you.

This article covers the law of Saskatchewan.

The two-year rule

Under The Family Property Act, the word spouse includes an unmarried person who is cohabiting, or has cohabited, with another as spouses continuously for not less than two years. The Supreme Court of Canada decision 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.

Two words matter: continuously and as spouses. Living as roommates, or living together on and off, may not meet the test. Whether a couple has cohabited as spouses depends on the facts, so a lawyer can help you assess your timeline. Whether a child changes the two-year period should not be assumed, and it is worth confirming.

What being a spouse means for property

Once you are a spouse under the Act, family property is distributed equally unless the court finds an equal distribution would be unfair and inequitable. The court considers factors such as any written agreement between the spouses and how long they cohabited.

There are important exceptions:

• The family home has a stricter test. Equal distribution 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.
• Certain property is exempt from distribution, including property owned before the relationship, gifts from third parties and inheritances. The exemption expressly excludes the family home and household goods, and a court can override it where exempting the property would be unfair and inequitable.
• For unmarried partners, property acquired more than 24 months after cohabitation ended is also exempt.

Time periods at a glance

Wills and common-law partners

On divorce, a gift to the former spouse and the appointment of that person as executor are revoked unless the will says otherwise. For unmarried spouses, this happens after they have ceased cohabiting in a spousal relationship for at least 24 months. A will that expressly says otherwise keeps the gift or executor appointment.

A will is also not changed by marriage or by two or more years in a spousal relationship. If you move in with a partner, your old will does not update itself, so review it.

What to do next

Support rights for unmarried partners and the deadlines for bringing property claims come from statutes and time limits that depend on your facts, so confirm them with a lawyer early rather than assuming.

• Write down the date you began living together and any gaps or separations.
• Collect proof of shared life: leases, joint accounts, tax filings, insurance and benefit records.
• List property owned before the relationship, gifts and inheritances separately.
• Locate any cohabitation or written agreement.
• Review your will and beneficiary designations.
• Get legal advice before moving out or transferring property.

Frequently asked questions