No court application is necessary for a separation – it simply occurs once a couple decides not to live together as a couple anymore. Sometimes couples who have separated continue to live in the same home due to personal circumstances. These individuals can still be considered separated as of when they stopped living together as a couple.
The date of separation is important for a few reasons. 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 this within 24 months of their separation, while married couples must make the application before they are divorced.
When a couple separates there are some immediate concerns. Depending on your circumstances you will need to decide…
- where each of you will live for now
- where the children will live during this time
- when the children will spend time with each parent for now
- how you, your spouse and any children will be financially supported during this time
The Family Home
Until there is a court order or an agreement both spouses have an equal right to live in the family home. This means that neither spouse is required to leave the house. Even still, many couples will reach an agreement, at least for the short-term, about which party will remain in the home and which party will move out.
Some of the things you may want to consider include…
- What other options do you or your spouse have for accommodation and how quickly are these available?
- Does one spouse have a particular need to be in the house? For example, do they work from the home?
- Are there children that will be affected? If so, which parent will mostly look after the children? What kind of connections do the children have to the neighbourhood? For example, schools, friends and activities?
There are also some legal considerations, including…
- If you and your spouse were living in a family home it is important to remember that you are not giving up your right to claim a portion of the value of the home by moving out. Neither spouse can sell or mortgage the family home without the other spouse’s permission. Dividing the family home and other family property can be dealt with at a later time. For more information see Home and Property.
- It is possible to apply to the court for an order for exclusive possession of the family home. For more information see Exclusive Possession of the Family Home.
- Spouses are legally obligated to provide their spouse with the necessities of life (including a place to live) if that spouse does not have means of their own. Parents of a child have the same duty.
- In cases where there is family violence different considerations apply. There are legal remedies available for victims of family violence concerning access to the family home. For more information see Safety.
The starting point for couples in Saskatchewan is that parents have equal rights and responsibilities regarding their children. This means that any decisions regarding where the children will live and other matters concerning the children must be agreed to by both parents unless there is a court order or an agreement that says otherwise.
Although couples have equal rights and responsibilities one parent may take the children if it is necessary to protect them from the other parent. However, unless the children themselves are at risk, taking the children may not be justified. Where there are no serious protection concerns, a parent who takes the children away from one parent with the intention of keeping that parent from seeing or having contact with the children could face criminal charges. For more information see Safety.
In cases where safety is not an issue some basic decisions regarding the children must be made, for the time being at least. For example, which parent the children are going to live with and where, when and how the children are going to see the other parent, and how their immediate needs are going to be met. Separating couples may be able to reach a temporary, informal agreement about these matters to get the family through until more long-term decisions can be made.
Your actions now could affect a court’s decision about custody and access if the matter does later go to court. If a court has to make a decision they will consider the best interests of the child. Courts expect parents to put the best interests of their children before any conflict they may have with the other parent. If either parent applies for an interim custody order the child care arrangements that have been in place since the separation will be a very important consideration. On an interim application the court will be very reluctant to change an arrangement that has been in place for any length of time. For more information see Custody and Access.
Money and Property
Couples handle their money and property in a variety of ways when they are together. When they first decide to live apart some couples will decide to continue to deal with their money in the same way they did when they were together. Depending on the circumstances this can allow both spouses and the children, if there are children, to be supported during this time of change. This also gives spouses time to consider how they want to handle support issues in the long-term.
For some couples some new decisions about money are required immediately. The way finances were handled in the past may no longer work after the couple separates, even in the short-term, for a variety of reasons. There may be concerns about a spouse wasting or jeopardizing family property. Each spouse may require access to money independent of the other. There may be new budgeting concerns as supporting two households is more expensive than one.
At the same time, this is most likely not a good time to make final decisions about finances. Some things, like child support, will depend on where the children live most of the time and this may not yet be decided. Determining if a spouse is entitled to spousal support and, if so, how much and for how long can be very complex. As well, spouses may not have a good idea about what their expenses will end up being or if their income will change. For example, a spouse that was at home with the children may now decide they need to look for work outside the home.
When deciding these matters it is important to remember that both spouses have a legal obligation to provide at least the necessities of life for their spouse if they have no other means. Both parents also have a legal obligation to support their children. The Child Support Guidelines can provide a good starting point. There are also Spousal Support Guidelines that can offer some guidance in determining an amount for spousal support, assuming that a person is entitled to spousal support. For more information see Child and Spousal Support.
Once a couple separates, the way family property is treated needs to be addressed even in the short-term. While it may be possible to temporarily divide things up so that both spouses have what they need for the immediate future, a more complete plan will be required. For more information see Home and Property.
It is very important for people who are dealing with family breakdown to get the help they need. A wide range of professionals from accountants to counsellors, mediators and lawyers may be needed, depending on your situation. Before you make any decisions that will have lasting consequences take the time to inform yourself about family law and to consult with a lawyer, if possible. For more information see Resources and Getting Legal Help.