Spousal Relationships

There are two main types of spouses in Saskatchewan. The first type are couples who are married. The second are couples who have lived together for two or more years as spouses.

People in spousal relationships do not give up any of their basic legal rights and freedoms upon entering the relationship. Each spouse is still their own person in the relationship and generally has the legal right to go about their life, independent of their spouse. People in a spousal relationship do, however, have certain rights and obligations in relation to the other spouse and any of their children.

A court order or other legal document is not required for spouses to separate. A separation simply occurs when spouses stop living together as a couple.

The date of separation is important for a few reasons. For example, married couples can get divorced after one year of separation. Unmarried spouses who want to apply to the court to divide family property must do so within 24 months of their separation. Married couples can make the application any time before they are divorced.

Married couples must apply to court to obtain a divorce. There must be legal grounds for a divorce. The most common ground is being separated for at least one year, but adultery or cruelty can also be used as grounds. The procedure for divorce alone is fairly simple if there has been a separation of one year or more. The most difficult matters for older spouses usually involve the division of family property and spousal support.

When an application for divorce is made, these other matters are usually dealt with at the same time. Couples should not finalize a divorce without first talking to a lawyer about family property and spousal support.

A court order for divorce ends the marriage and leaves the spouses free to remarry. However, spouses may still have obligations to one another that do not simply disappear with a divorce.

Saskatchewan law recognizes that both spouses contribute to the relationship. This includes raising children, managing the household and providing financial support. Generally speaking, spouses are each entitled to an equal share of the family property. This includes the family home, pensions and RRSPs, regardless of whose name they are held in.

The value of property that a spouse had before the couple became spouses, except the family home, is exempt unless the court orders otherwise. This means that the value of that property at the time the spousal relationship began would not be divided between the spouses. However, any increase in the value since that time would be subject to division between the spouses. This can be an important consideration in second marriages or where a first marriage happens later in life.

The family home is treated differently. Generally speaking, the full value of the family home will be divided equally unless it would be unfair and unjust to do so. This means that a home owned solely by one spouse before the relationship began will usually be divided equally between the spouses. The court will only allow an uneven division of the family home if there are extraordinary circumstances.

Other family property is also divided equally unless it would be unfair to do so. However, when dealing with family property other than the family home, the court will consider factors such as:

• how long the couple has lived together
• when the property was acquired
• how the property was acquired
• tax liabilities if the property has to be sold
• the value of family property outside of Saskatchewan
• debts of the spouses
• any interest that another person has in the property

If a couple separate or divorce, there is no automatic right to spousal support. However, spouses may apply for an order requiring the other spouse to pay them support. When deciding whether to order spousal support, courts will consider factors such as:

• the financial means, needs and circumstances of each spouse
• the length of the spousal relationship
• the role each spouse had during the relationship and the effect on each
• any court order or agreement regarding spousal support

Once it is determined that a spousal support order is appropriate, an amount and how long it will be paid for still need to be determined. Spousal support amounts and duration may vary widely. Many of the same factors used to determine whether a support order is appropriate in the first place are considered. There are, however, Spousal Support Advisory Guidelines in place. These help the court or the parties themselves to simplify determining the amount and duration or at least provide an appropriate starting point. Spousal support guidelines are advisory only, not mandatory. They include formulas that use factors such as the income of both spouses and the length of the relationship to calculate spousal support.

Following a divorce, separation or the death of a spouse, many older adults may decide to enter a new spousal relationship. This can bring with it different things to consider. Some issues may be of particular interest to older adults, such as:

• preserving property and money accumulated during their lifetime
• understanding how disability or survivor benefits and pension plans may be affected
• planning for care-giving and long-term medical obligations
• dealing with the reactions of adult children
• addressing inheritance issues