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Common Law Saskatchewan: What It Means And What You’re Entitled To

In this article:

    What is common law in Saskatchewan? 

    A common law relationship is when a couple lives together in an interdependent, marriage-like relationship. In Saskatchewan, a couple must live together continuously for at least two years before they can be considered a common-law couple.

    Key takeaways

    • Couples must cohabit for at least two years to be considered common law in Saskatchewan
    • In Saskatchewan, married spouses and common-law partners have the same automatic succession rights for intestate estates
    • Making a will in Saskatchewan helps you protect your partner, dependants, and estate
    • Cohabitation agreements can be useful for legally defining assets, responsibilities, and more within a common-law relationship

    When do you become common law in Saskatchewan?

    If you live in Saskatchewan, your relationship may be defined differently depending on your purpose and which court—federal or provincial—sets the criteria in that field.

    For taxes & immigration (Federal) For estate planning (Provincial)
    Must live together for at least 12 months to be considered common law partners Must live together for at least two years to be considered common law partners

    Estate planning in Saskatchewan: essentials for common-law couples

    What is the legal definition of a spouse in Saskatchewan?

    According to Saskatchewan’s Family Property Act, a spouse is legally defined as a person’s married spouse or common law partner. 

    What is the difference between a legal spouse and a common law spouse?

    A legal spouse is often categorized by marriage, though there are some places like Quebec where a legal spouse can also refer to a spouse from a civil union. 

    Marriage, as the lawful union of two people to the exclusion of all others, is formalized through legal documents and procedures like a marriage license, a ceremony, an officiant and witnesses, and a marriage certificate. 

    A common law relationship, on the other hand, isn’t a legal union. It doesn’t need to be legally documented and is often not legally binding. There are some documents like a cohabitation agreement that can make it more official for managing assets, but generally, a common law relationship centres entirely around cohabitation; 

    • If the relationship ends, you are no longer common law partners.
    • If you are in a relationship but are voluntarily not living together, you are not common law partners.

    Is spousal support available for common law couples in Saskatchewan?

    There is no automatic process for receiving spousal support after separation or divorce. But, since common law couples are considered spouses under Saskatchewan law, they are eligible for spousal support if the situation warrants it.

    The courts generally consider the following factors when determining spousal support:

    • The financial means and needs of each partner
    • The length of the relationship
    • The roles and contributions of each partner during the relationship
    • The ability of the recipient spouse to become self-sufficient
    • Any existing child support obligations

    What your common law status means for your estate plan

    Saskatchewan’s inheritance laws consider common law partners to be legal spouses with the same succession rights as married spouses. This means that if you were to die without a will, your common law partner could automatically inherit your estate.

    🔍 Learn more about estate planning for unmarried spouses here → 

    Another important part of your estate plan is who becomes your substitute decision maker (SDM). An SDM is someone who steps forward to make health care decisions for you if you ever lack the capacity to make them yourself.

    According to Saskatchewan’s Health Care Directives and Substitute Health Care Decision Makers Act, your SDM can be either a proxy named in a health care directive, a personal guardian appointed by the court, or your nearest adult relative.

    The precedence for who becomes your SDM is as follows:

    1. The proxy appointed in your medical directive
    2. If you have no proxy and you have a court-appointed guardian, your guardian is your SDM
    3. If you have no proxy or guardian, your nearest relative is your SDM
      • Nearest relatives are outlined in section 15 of the Act as follows;
        1. Your spouse (includes common law partner); 
        2. Your adult child; 
        3. Your parent or legal custodian; 
        4. Your adult brother or sister; 
        5. Your grandparent; 
        6. Your adult grandchild; 
        7. Your adult uncle or aunt; and
        8. Your adult nephew or niece

    While common law partners are able to act as SDMs, there is a possibility your spouse may not be comfortable doing so because of the emotional stress or pressure. It’s important to choose an SDM you can rely on to act based on your wishes. 

    Learn more about health care directives and POAs in Saskatchewan → 

    Protecting assets and legacy 

    An important way to protect your assets or plan for asset distribution in a common law relationship is to make a cohabitation agreement. A cohabitation agreement in Saskatchewan is a legal contract that outlines a common law couple’s property rights, responsibilities, and financial arrangements within their relationship.

    Specifically, a cohabitation agreement allows common law couples in Saskatchewan to:
    1. Determine how property (assets and debts) will be divided if they separate, rather than being subject to the equal 50/50 split of family property that applies to common law partners after 2 years of cohabitation.
    2. Outline financial responsibilities during the relationship, such as how household expenses and debts will be handled.
    3. Specify terms for spousal support obligations, rather than being bound by the default spousal support rules for common law partners.
    4. Protect certain assets from being considered joint family property subject to division. For example, a house owned by one partner prior to cohabiting.
    5. Address parental rights and responsibilities for any children involved.

    Having each partner create an asset list is also a great way to keep track of who owns what and how things should be divided if the relationship ends.

    Creating a will for common law couples in Saskatchewan 

    Your common law partner may be automatically entitled to receive an inheritance because of Saskatchewan’s succession laws, but there’s more to estate planning than designating beneficiaries.

    Making a will allows you to do more than just cover your partner’s inheritance and avoid the probate process in Saskatchewan (which is almost guaranteed without a will). A will also allows you to:

    1. Choose an executor to manage and distribute your estate
    2. Legally designate beneficiaries you’d like to leave assets to
    3. Appoint a guardian to look after your child(ren) or pet(s)
    4. Leave behind legacy gifts to causes you support

    How to create a will with your partner

    Legally, each person must make their own will. No one can make it for you. 

    Willful makes it easy and affordable to create your legal will online. Choose Premium x 2 at checkout to get extra savings on complete estate plans for two adults, including a legal will, power of attorney documents, and asset lists for two.

    The easiest way to create a legal will with your partner. Start yours for free →

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