When Is a Divorce Final in Saskatchewan? The 31-Day Rule

A judge signing a divorce judgment feels like the end of the road, but in Saskatchewan the divorce is not legally final that day. There is a short waiting period built into the law, and a few steps around it that are easy to mix up: the judgment, the effective date and the Certificate of Divorce.

This article explains how the 31-day rule works, what the court must be satisfied of before it grants a divorce, how the last stage of an uncontested divorce unfolds in the Court of King's Bench, and what to do if you plan to remarry.

This article covers the law of Saskatchewan.

The 31-day rule

Under section 12(1) of the federal Divorce Act, a divorce takes effect on the 31st day after the day the judgment granting it is rendered. So the date on the judgment and the date you are legally divorced are different dates.

There is an exception. Under section 12(2), a court can order an earlier effective date in special circumstances, but only if the spouses agree not to appeal. Whether your situation counts as special is a question for the court, and it is worth raising with a lawyer before you assume an earlier date is possible.

How this waiting period applies to you depends on your situation, so it is worth confirming your effective date with a lawyer. Until the divorce takes effect, you are still legally married.

What the court must be satisfied of first

A judge does not grant a divorce automatically. The only ground for divorce is breakdown of the marriage, and it can be shown by the spouses having lived separate and apart for at least one year immediately before the divorce is determined, and having been living apart when the proceeding began. Spouses can be separate and apart while living under the same roof if one of them intends to live separately, and a period of resumed cohabitation of up to 90 days made mainly to reconcile does not interrupt or end the separation period.

The other ways to show breakdown are adultery or physical or mental cruelty by the other spouse that makes continued cohabitation intolerable. You cannot rely on your own adultery or cruelty.

The one-year separation must be complete when the divorce is determined, not when you file. A petition can be filed before the full year has passed if the year will be complete before judgment.

The court must also be satisfied of two further things:

• There has been no collusion between the spouses.
• There is no possibility of reconciliation, unless it would clearly be inappropriate to consider that.

Collusion is not the same as cooperation. Agreements about separation, support, property or parenting are not collusion. That means settling those issues together does not, on its own, count as collusion, although the court still has to be satisfied of the other requirements before it grants a divorce.

The end of the Part 15 process in an uncontested divorce

Family proceedings in the Court of King's Bench are governed by Part 15 of the King's Bench Rules. Part 15 includes the Petition (Form 15-8A), which states that it is to be served within 6 months after it is issued unless the court orders otherwise. If there is no acknowledgment of service, service can be proved by an affidavit of service in KB Form 12-15.

Part 15 includes rules and forms for several documents that come up in an uncontested divorce. The table lists some of them by rule, and it is not a complete checklist of every step:

Exact forms, fees and how long each step takes can vary, so rely on the instructions that come with the court's materials rather than on general guides.

The Certificate of Divorce and remarrying

The Certificate of Divorce is its own step under Rule 15-103. It is not the same thing as the judgment. If you plan to remarry, ask the court or a lawyer what proof of your divorce you will need, since this depends on your situation.

Because the divorce only takes effect on the 31st day after judgment, do not book a wedding or sign anything that depends on being divorced as of the judgment date. Count the days from the day the judgment was rendered, confirm the effective date, and then ask about the certificate.

Divorce can also affect other things. For example, on divorce a gift to a former spouse in your will and the appointment of that person as executor are revoked unless the will says otherwise. A will that expressly says otherwise keeps the gift or appointment. It is a good time to review your will.

What to do next

The Court of King's Bench offers a free Self-Help Divorce Kit for uncontested divorces, with instructions and one set of forms. You can request it from the Family Law Information Centre at 306-787-5837 or 1-888-218-2822.

• Find the date on your judgment and count to the 31st day after it.
• Check whether you and your spouse truly intend to agree not to appeal, if you are hoping for an earlier effective date.
• Keep copies of the judgment, your affidavit and any service documents.
• Ask the court how to obtain your Certificate of Divorce once the divorce has taken effect.
• Review your will, beneficiary designations and parenting or support arrangements.
• Speak to a lawyer if the divorce is contested, if there are children, or if you are unsure about any step.

Frequently asked questions