Names, Debts & Wills

Aside from dealing with family law issues, such as parenting, support and the division of family property, there are some other laws that can impact a separating couple.

If you took your spouse’s last name during your spousal relationship, or began using a double or hyphenated surname, you might want to change your last name when your spousal relationship ends. In Saskatchewan eHealth deals with name changes.

After your relationship ends, you can simply choose to use any of the following...

• the last name that you were using at the time your spousal relationship ended, or
• the last name you were using immediately before entering into the relationship, or
• your birth name

You do not need to apply or pay any fee to change your name to any of the above choices. Individuals who change their name as a result of a spousal relationship ending can change their name back to one of the above choices at any time. If you want to change your name to something other than one of the above choices you must make an application and pay a required fee.

Individuals who were in a spousal relationship that was not a legal marriage must, however, file a declaration with eHealth confirming that the spousal relationship has ended.

Changing a last name by election does not change your name on your Birth Registration or your Birth Certificate. Individuals who have elected to change their last name may also wish to change their last name on things such as bank accounts, health cards and drivers' licences. Agencies involved may require proof of the end of the relationship and may also charge a fee for issuing documents with a changed last name.

You can also apply to eHealth to change your child’s name, provided that...

• you are the legal custodian of the child
• you have the written consent of every other legal custodian of the child
• you have the written consent of the child if the child is over 14 years of age

Spouses often take out a loan together or co-sign for one another. A spouse is not automatically responsible to a third party for their spouse’s debts. As between third parties, the only debts both spouses are responsible for are debts where:

• one spouse co-signs the loan for the other spouse
• both spouses agree with the creditor that they are both responsible for the debt
• one spouse guarantees to the creditor the debt of the other spouse by signing a guarantee document

It is important to note that not being responsible to a third party is only part of the equation when talking about spousal debt. Even though one spouse may not be responsible to a third party for a particular debt, they may be considered responsible to their spouse for a portion of the debt if it relates to family property.

For example, during a spousal relationship one spouse may purchase a major appliance on a credit card that is in their name alone. As between the cardholding spouse and the credit card company, the cardholder is the only party responsible for the debt. The other spouse is not responsible to the credit card company and the credit card company cannot require the non-cardholding spouse to assume responsibility for the debt.

Between the spouses, however, one spouse may be able to claim that the other spouse should share the responsibility for a debt that relates to family property, such as a major appliance that was enjoyed by both spouses and not intended to be the property of one spouse alone. But this claim is between the spouses and does not change the responsibility of the cardholder to the credit card company. The responsibility for the debt between the spouses can be dealt with as part of the division of their family property.

It is important for separating spouses to deal with jointly held credit cards, credit lines and loans. An agreement between spouses will not change the rights of a third party to get satisfaction for the debt from the party or parties that signed on for the debt. Spouses may wish to negotiate with the third party to have their name removed from the credit agreement. If this is not possible, it is important to have an agreement between spouses that clearly spells out who will be responsible for what.

Ending a spousal relationship can affect your Will. For example, if you name your spouse as your executor or leave part of your estate to your spouse, those parts of your Will are revoked or cancelled after you divorce, or after 24 months of separation in the case of unmarried couples, unless you expressly say otherwise in your Will.

It is a good idea for separating couples to revisit their Wills. It is important to understand how separation and divorce can affect your Will. You should make changes as required, paying particular attention to any part of your estate that you still wish your spouse to inherit, and the naming of executors, trustees, and guardians of minor children.