What is the family home?
In Saskatchewan, the law refers to the marital or matrimonial home as the family home. A family home may be owned or leased. It may be owned or leased by only one spouse or both spouses or by one spouse and a third party. The family home includes all types of premises that the spouses occupied as their family home such as a detached home, condominium, cottage, or apartment.
Who has rights to the family home?
Your claim to the family home depends upon whether or not you are a spouse. Married people are spouses and people who have lived in a common-law relationship for at least two years are spouses.
You are not a spouse if you are divorced and you are not a spouse under The Family Property Act if you have not lived together in a common-law relationship for at least two years and/or, if you lived together in a common-law relationship for at least two years, but you did not bring your legal claim until more than two years after you separated.
You may also have a legal argument that you are a spouse after obtaining a divorce if you and your former spouse lived together as spouses for at least two years before separating and you brought your legal claim before being separated for two years. To avoid having to make such a legal argument, it is wise to wait to obtain a divorce until you have an agreement or court order about what to do with the family home.
What if you leave the family home?
By leaving the family home, a spouse does not give up the right to claim an interest in the home or personal property in the home. The legal concept of “abandonment of property” operates differently within family law and you do not need to worry that, by leaving the family home, you are abandoning your property or your interest in it.
You should be aware that once you leave the family home you will lose a lot of control over what goes on inside the home, including care or upkeep of the home and furniture or furnishings, and may have limited access to the home. Just as you will have an expectation of privacy in your new home, your spouse may expect the same right to privacy once you leave the family home and you may have fight ahead of you if you continue to come and go despite having a legal right to access the home.
It is a good idea to photocopy important documents and safeguard items of sentimental or financial value if you do plan to leave the family home. You may also want to take detailed photographs or videos of each room in the house for when it comes time to evaluate the value of property and divide it.
What rights do spouses have to the family home?
After you separate, you and your spouse have an equal right to stay in the family home and a right to claim a share in its value. This is true even if only one spouse owned the home before and/or after the spousal relationship began.
The equal right to stay in the family home is not about who owns it, but rather who can live in it. This is called the “right to possession” of the home and means that, even if your spouse is the only owner of the family home, they cannot lock you out or refuse to let you into it without an agreement or court order.
When people separate, there is often conflict about who will continue to live in the family home. The Court has the authority to make either a temporary or final order permitting only one spouse to live in the family home. The order is called an order for “exclusive possession”. Before making an order for exclusive possession the Court must consider a number of factors, some of which are the best interests of children residing in the home, the financial position of each spouse, and alternative suitable accommodation each spouse may have available to them. A Saskatchewan Court does not have the authority to make such an order if the family home is located outside Saskatchewan.
You and your spouse’s equal right to stay in the family home lasts until one of the following happens:
- There is a legal separation agreement that says one of you cannot live there;
- There is a court order that says one of you cannot live there; or
- You sell your family home or your lease ends.
If you are considering separation or you are already separated, it may be very important for you to consult with a lawyer to find out whether or not your residence is a family home, what rights you have, or what rights you should be enforcing.