In Saskatchewan, cohabitation agreements are a legally recognized and enforceable way for unmarried couples to define their rights and obligations in a domestic partnership. While many people assume that legal protections only apply to married couples, Saskatchewan law extends certain rights to common-law partners, especially after a period of cohabitation. These default rights, however, may not align with every couple’s intentions, making cohabitation agreements an important planning tool.

This article explains the legal basis for cohabitation agreements in Saskatchewan, the requirements for enforceability, and important provincial nuances that individuals should understand before entering into such an agreement.

Are Cohabitation Agreements Permitted in Saskatchewan?

Yes. Cohabitation agreements are permitted and recognized under The Family Property Act, SS 1997, c F-6.3. This legislation governs the rights of spouses—including common-law partners—regarding the ownership and division of property on separation.

Section 38(1) of The Family Property Act expressly permits spouses to enter into agreements concerning the ownership and division of property. The section provides:

“The terms of an interspousal contract mentioned in subsection (4) are, subject to section 24, binding between spouses, whether or not there is valuable consideration for the contract, where the spouses have entered into an interspousal contract:

(a) that deals with the possession, status, ownership, disposition or distribution of family property, including future family property;

(b) that is in writing and signed by each spouse in the presence of a witness; and

(c) in which each spouse has acknowledged, in writing, apart from the other spouse, that he or she:

(i) is aware of the nature and the effect of the contract; (ii) is aware of the possible future claims to property he or she may have pursuant to this Act; and

(iii) intends to give up those claims to the extent necessary to give effect to the contract.”

Although the term used is “interspousal contract,” it applies not only to married spouses but also to common-law spouses, provided they meet the statutory criteria under section 2(1) of The Family Property Act:

““spouse” means either of two persons who: …

(c) is cohabiting or has cohabited with the other person as spouses continuously for a period of not less than two years;”

Therefore, common-law couples who have lived together continuously for two years are considered “spouses” for the purposes of this legislation, and they may enter into binding property agreements.

What Can a Cohabitation Agreement Cover in Saskatchewan?

A cohabitation agreement (formally referred to as an interspousal contract) in Saskatchewan may address the following:

• Division of family property on separation or death
• Ownership of property acquired before or during the relationship
• Responsibility for debts and liabilities
• Spousal support entitlements or waivers
• Financial obligations during the relationship
• Disposition of property on death, though this should be supported by estate planning documents

As in all provinces, Saskatchewan does not allow cohabitation agreements to govern parenting arrangements. Decisions about custody (decision-making responsibility) and parenting time must always be made in the child’s best interests under The Children’s Law Act, 2020, SS 2020, c 2.

Who Qualifies as a Common-Law Spouse in Saskatchewan?

Under The Family Property Act, common-law partners gain statutory rights and obligations only after cohabiting continuously for at least two years in a spousal relationship.

This two-year threshold is important because:

• Before two years of cohabitation, no property rights arise under the Act
• After two years, common-law partners are treated the same as married spouses for property division

It is possible to enter into a cohabitation agreement before reaching the two-year threshold, but the agreement will only become fully enforceable under The Family Property Act once the parties meet the statutory definition of “spouse.”

What Makes a Cohabitation Agreement Enforceable in Saskatchewan?

Cohabitation agreements are generally upheld by Saskatchewan courts if the following criteria are met:

1. Formal Requirements

To be enforceable, an interspousal contract (which are cohabitation agreements) must meet these requirements:

• The agreement must be in writing
• Signed by both parties
• Each party must receive independent legal advice (ILA)
• The agreement must include a certificate of ILA signed by the lawyer

If these requirements are not satisfied, the agreement is not enforceable under Saskatchewan law. This strict formalism is consistent with Alberta’s approach, but stricter than that of Ontario or British Columbia.

2. Independent Legal Advice (Mandatory)

Each party must receive independent legal advice before signing. The lawyer must:

• Explain the nature and consequences of the agreement
• Confirm the advice was given freely and the party understands the agreement
• Sign a Certificate of ILA, which is attached to the agreement

The requirement for ILA is not optional and is a statutory condition for enforceability. Section 38(2) of The Family Property Act provides:

“A spouse shall make the acknowledgment mentioned in subsection (1) before a lawyer other than the lawyer:

(a) acting in the matter for the other spouse; or

(b) before whom the acknowledgment is made by the other spouse.”

3. Full Financial Disclosure

Saskatchewan courts follow the general Canadian principle that full and frank financial disclosure is essential for fairness. If one party fails to disclose significant assets or liabilities, and the result is materially unfair, a court may refuse to enforce the agreement.

4. Voluntariness and Fairness

The agreement must be entered into voluntarily. If there is evidence of:

• Duress or coercion
• Misrepresentation or fraud
• Inequality in bargaining power
• Significant unfairness in the result

Then the agreement may be set aside, even if the formal requirements are met. However, Saskatchewan courts are generally deferential to parties’ freedom to contract when formalities are observed.

Can a Cohabitation Agreement Waive Spousal Support?

Yes. A cohabitation agreement can include a clause waiving spousal support or setting out specific terms for support (e.g., amount, duration, review conditions). However, as with property provisions, any waiver must be:

• Clearly stated
• Supported by legal advice and disclosure
• Not unconscionable or shockingly unfair at the time of enforcement

The waiver may still be challenged under equitable principles, particularly if the party claiming support has become financially disadvantaged and did not fully understand the consequences of the waiver.

Can a Cohabitation Agreement Override the Intestate Succession Rules?

Cohabitation agreements can include provisions about the distribution of property on death. However, common-law partners in Saskatchewan do not have automatic inheritance rights unless:

• They have cohabited for at least two years, and
• The deceased did not have a will excluding them

A cohabitation agreement can waive inheritance rights or provide for specific gifts or entitlements, but such provisions should be supported by an up-to-date will and estate plan.

What Happens If the Couple Marries?

If a couple who signed a cohabitation agreement later marries, the agreement remains valid only if it satisfies the formal requirements of an interspousal contract and does not contain a clause terminating it upon marriage.

For clarity, many Saskatchewan agreements include a clause such as:

“This agreement shall continue in full force and effect in the event that the parties subsequently marry.”

If this clause is absent, and the agreement is ambiguous on the point, a court may need to interpret whether it survives marriage.

Unique Considerations in Saskatchewan

Saskatchewan has several features that distinguish it from other provinces when it comes to cohabitation agreements:

1. Mandatory Independent Legal Advice

Like Alberta, Saskatchewan requires ILA with signed certificates for property agreements to be enforceable. Failure to comply renders the agreement invalid.

2. Two-Year Cohabitation Threshold

Unlike Ontario or B.C., where rights may arise earlier in some cases (e.g., children together), Saskatchewan imposes a clear two-year cohabitation requirement before common-law partners are treated as spouses under the Family Property Act.

3. Strict Formalities for Interspousal Contracts

The courts will not enforce a cohabitation agreement unless it complies with the formal statutory requirements, no exceptions. This means casual or informal agreements (even if signed) are not enforceable unless legal advice is received and documented.

4. Judicial Respect for Contractual Autonomy

When all legal requirements are met, Saskatchewan courts tend to respect the parties’ contractual choices—even if the outcome is unequal—provided the agreement was not unconscionable or obtained unfairly.

Best Practices for Drafting a Cohabitation Agreement in Saskatchewan

• Ensure the agreement is in writing and signed by both parties
• Provide comprehensive financial disclosure, ideally in writing and attached to the agreement
• Confirm that each party receives independent legal advice, with signed certificates
• Use clear language to classify excluded vs. shared property
• Specify whether the agreement continues if the parties marry
• Include a spousal support clause, even if only to waive entitlement

Conclusion

In Saskatchewan, cohabitation agreements offer an effective and legally recognized way for common-law partners to manage their rights and responsibilities. While the law extends property rights to unmarried couples after two years of cohabitation, these default rules may not reflect the couple’s intentions. A cohabitation agreement allows the parties to contract out of the statutory regime and create a personalized financial framework.

To be enforceable, a cohabitation agreement in Saskatchewan must strictly comply with the formal requirements of The Family Property Act, including independent legal advice and a signed certificate from each party’s lawyer. With proper drafting and legal support, such agreements can offer clarity, fairness, and long-term protection for both partners.

You’re Invited to Call or E-Mail!

If you’re considering a cohabitation agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at (800) 407-2570 or email us using our contact form here. We can help you anywhere in Ontario, including Ottawa, Toronto, Mississauga, Brampton, and Hamilton.