Ending a marriage is often a complicated decision, shaped by a range of complex emotional, financial, and personal factors. When divorce becomes necessary, understanding the legal process can provide a greater sense of clarity and control during what is typically a challenging and uncertain time. Whether a separation is amicable or contentious, it is important to be informed of your legal rights and responsibilities.
What is a divorce and who can get one?
Divorce is the formal legal process of ending a marriage. In Saskatchewan, the process for obtaining a divorce is done by way of a paper application filed with the Court of King’s Bench [the “Court”]. The Court considers applications for divorce under the authority of the Divorce Act, RSC 1985 [the “Divorce Act”] and in accordance with the King’s Bench Rules.
A divorce is required only when you are legally married to your spouse, meaning that a valid marriage certificate has been issued in accordance with the laws of the country in which your marriage took place. You may apply for a divorce in Saskatchewan even if you were married elsewhere, provided that either you or your spouse have been a Saskatchewan resident for at least one year immediately preceding the application for divorce. While married spouses can choose to separate and live apart, the marriage does not legally end until a divorce has been obtained. This is true even if all issues related to separation, such as division of property, spousal support, and issues involving any children of the marriage, have been resolved.
If you and your spouse are common law spouses, meaning that you have been cohabiting with one another for two years or more but are not legally married, a divorce is not necessary and cannot be obtained.
When can I apply for divorce?
To obtain a divorce, section 8(1) of the Divorce Act requires that a breakdown of the marriage be established. The Divorce Act outlines several grounds upon which marital breakdown can be determined, including providing evidence, beyond mere allegation, that one spouse has committed adultery or treated the other with cruelty. The most common and straightforward basis to establish marital breakdown, however, is demonstrating that the spouses have lived separate and apart for at least one year immediately prior to filing the divorce application. Therefore, it is essential to identify the approximate date that you separated from your spouse, as a divorce application may be filed once at least one year has passed from that date. Additionally, keep in mind that any reconciliation between spouses may affect the calculation of the separation period and, consequently, the timing of a divorce application.
Living “separate and apart” from your spouse does not necessarily require physical separation. The case law recognizes that it may not always be feasible or practical for spouses to reside in different households immediately following separation. Rather, the concept focuses on the intention to live separate lives regardless of whether the spouses may remain under one roof for some time after separating.
Are there other legal requirements in applying for divorce that I should know about?
Pursuant to section 11(1)(b) of the Divorce Act, if you and your spouse have children under the age of 18 at the time you are applying for divorce, the Court will not grant a divorce unless it is satisfied that reasonable arrangements between the spouses have been made for the financial support of their children, also known as child support. These child support arrangements may be set out in an agreement between the parties or in a Court Order, which must then be filed with the Court.
If you are seeking a divorce and have children with your spouse, we encourage you to speak to a lawyer regarding child support requirements and obligations, as well as parenting time and decision-making responsibility.
What else should I keep in mind?
A marriage is not legally terminated until a divorce is granted. Therefore, even if all family law related issues have been resolved between you and your spouse and you have been separated for quite some time, you are still legally considered spouses until you have obtained a divorce. Neglecting to obtain a divorce in such circumstances can pose complications under The Intestate Succession Act, 2019, The Dependant’s Relief Act, 1996, and other similar legislation that may afford certain legal rights and entitlements to legally married spouses. As such, spouses are highly encouraged to obtain a divorce after separating even if they are amicable, all other issues have been resolved, and neither spouse intends to remarry in order to avoid complications that may arise down the line.
Although a divorce can be obtained without the assistance of legal counsel or representation, if you are going through a separation or are contemplating the same, we encourage you to speak with a lawyer about your legal rights, responsibilities, and obligations. If you have any questions or require further information regarding your particular situation, please contact us and Avenue Law LLP’s family law team would be happy to assist you.
The opinions expressed in this content are those of the authors alone and do not reflect the views of Avenue Law LLP or its clients. Any comments or discussions of legal topics are not intended as legal advice or solicitation. The authors makes no guarantees regarding the accuracy, completeness, or reliability of the information outlined, whether in this content or through any linked sources.
This blog is for general informational purposes only. The content provided does not constitute legal advice and does not establish a solicitor-client relationship with Avenue Law LLP. For advice tailored to your specific situation, please contact Avenue Law LLP directly to arrange a consultation.
