Common-Law in BC: Is the Home You Owned Before Moving In Divided?

You bought a home, or built up other assets, before your partner moved in. Now the relationship is ending, and you want to know whether that property is at risk. The answer depends on how long you lived together and on what happened to the property's value.

In British Columbia, the Family Law Act treats qualifying common-law partners much like married spouses for property. It also protects some property you brought into the relationship. This article walks through how those rules fit together.

This article covers the law of British Columbia.

When property division applies to common-law partners

A person is a spouse under the Family Law Act if they are married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years.

Having a child together can make someone a spouse for support and parenting matters, but not for property or pension division. Before 2013, unmarried couples could not ask a court to divide property under the family property legislation, however long they had lived together. Qualifying common-law couples can now.

The relationship begins on the earlier of the date you began living together in a marriage-like relationship and the date of marriage. Once you reach the two-year mark, the relationship is counted from when you started living together, not from the end of the two years.

What happens to the home you owned before

Excluded property includes property a spouse acquired before the relationship began, inheritances, gifts from third parties, and property derived from these. Excluded property is not part of family property. So the home you owned before moving in is generally not divided as it stood on the day the relationship started.

There is an important catch. Family property also includes the amount by which the value of excluded property has increased since the later of the date the relationship began and the date the property was acquired. The increase in value of a pre-relationship house is shared, but its starting value is not. That increase does not include value received from a discretionary trust.

• The starting value of the home: excluded.
• The increase in value during the relationship: family property.
• Value received from a discretionary trust: not counted in that increase.

Proving what is excluded and how it is valued

A spouse who claims that property is excluded must prove it. In practice, that means keeping records that show what you owned and what it was worth when the relationship began. Family property is valued at fair market value unless an agreement or order says otherwise.

Family property is generally shared equally. On separation each spouse has a right to an undivided half interest in all family property as a tenant in common.

When the split may not be equal, and when excluded property can be divided

The Supreme Court may order an unequal division of family property or debt if an equal division would be significantly unfair. Factors include the length of the relationship, the terms of any agreement, career contributions, and whether debt arose in the normal course.

The court may divide excluded property itself only in narrow cases. One is where family property or debt outside British Columbia cannot practically be divided. The other is where not dividing the excluded property would be significantly unfair. The second ground considers the length of the relationship and a spouse's direct contribution to the property.

Couples can also opt out of these rules by agreement. Spouses may make agreements dividing property and debt equally or unequally. The court can set aside a witnessed written agreement only on listed grounds, such as a failure to disclose significant property or debts, or a spouse not understanding the agreement.

Time limits and protecting the home during a dispute

An application for property division must generally be made within 2 years. For unmarried spouses, the 2 years run from the date they separated. The period is suspended while the spouses are in family dispute resolution or a prescribed process.

If you worry the home may be sold while the dispute continues, a spouse can ask the Supreme Court to restrain the other spouse from disposing of property that is at issue.

• Write down the date you started living together and the date you separated.
• Gather proof of what you owned before the relationship, such as title and mortgage statements.
• Collect records showing the home's value near the start of the relationship and now.
• Find any written agreement you made about property.
• Note the deadline and speak with a lawyer early about your options.

Frequently asked questions