How the Family Home Is Divided in a Divorce Under BC's Family Law Act

For most separating couples, the family home is the largest asset. Questions about who keeps it, who gets what share, and how it is valued come up quickly.

This article walks through the general approach of British Columbia's Family Law Act. Every situation depends on its own facts, so treat this as a map and not a prediction.

This article covers the law of British Columbia.

The starting point: equal sharing

Spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution. On separation, each spouse has a right to an undivided half interest in all family property as a tenant in common.

Family property includes property owned by at least one spouse and a beneficial interest of at least one spouse in property, so the name on title does not settle the question.

Under the Family Law Act, a person is a spouse if married, or has lived with another person in a marriage-like relationship for a continuous period of at least 2 years. A person can also be a spouse by having a child with the other person, but not for property division or pension division.

Excluded property and the home

Excluded property includes property acquired before the relationship began, inheritances to a spouse, and gifts to a spouse from a third party. The spouse claiming exclusion must demonstrate it.

A court must not divide excluded property unless it would be significantly unfair not to, considering the duration of the relationship. However, the increase in value since the later of the relationship start or acquisition date is family property.

Valuation, debt and unequal division

Family property is valued at fair market value unless an agreement or order provides otherwise. Family debt includes obligations incurred by a spouse from when the relationship began until separation, and after separation if incurred to maintain family property.

The Supreme Court may order an unequal division of family property or debt if equal division would be significantly unfair, considering factors such as a spouse's contribution to the other spouse's career and the duration of the relationship.

Agreements and court orders

• Spouses may make written agreements to divide property equally or unequally, signed by each spouse with the signatures witnessed by at least one other person.
• The court may set an agreement aside if, for example, a spouse failed to disclose significant property or debts, took improper advantage of vulnerability, or did not understand it.
• To give effect to a division, the court may require partition or sale of property with payment out of the proceeds, and interim distribution may be ordered.

The Supreme Court may grant a spouse exclusive occupation of a family residence for a specified period of time, including to the exclusion of the other spouse. This is a temporary order and does not itself transfer ownership.

On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of property until the other spouse establishes that a claim will not be defeated. It may be made before notice is served.

The Family Law Act sets a time limit: a proceeding to divide property must be started no later than 2 years after a divorce judgment or nullity order for married spouses, or after the date of separation for unmarried spouses. The limit is suspended while the spouses are engaged in family dispute resolution with a professional.

Title, co-ownership and tax

If both of you are on title, how you hold it matters. Where land is transferred to two or more persons, they are tenants in common unless a contrary intention appears in the instrument, and spouses are treated as two persons for this purpose.

If owners cannot agree, joint tenants and tenants in common may be compelled to partition or sell the land under the Partition of Property Act.

If one of you keeps the home, tax may come up. A transfer to a spouse or former spouse under a written separation agreement or Family Law Act court order is claimed with Property Transfer Tax exemption code 15. Federal income tax may also be relevant when the home changes hands between separating spouses. How this applies to you depends on your situation, so it is worth confirming with a lawyer or accountant.

What to do next

• Get a current appraisal or other evidence of the home's fair market value.
• Collect the date of purchase, the relationship start date, and any records of gifts or inheritances.
• List the mortgage and other debts, with the dates they were incurred.
• Get a current title search so you know how the home is registered.
• Note the 2-year time limit, and the exception while family dispute resolution is under way, in your calendar.
• Have a lawyer review any proposed agreement before you sign.

Frequently asked questions