Who Owns the Home After Separation if Only One Spouse Is on (British Columbia)

You may have lived in a home for years without your name on the title. Now the relationship has ended, and you are wondering whether you have any claim to the house at all, or whether the titled spouse can simply keep it.

In British Columbia, title is only part of the picture. The Family Law Act looks at who is a spouse, what counts as family property, and what is excluded. This article explains the general rules so you know what questions to ask.

This article covers the law of British Columbia.

Who counts as a spouse

Under the Family Law Act, a person is a spouse 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. For property division, having a child together does not make someone a spouse on its own.

The Wills, Estates and Succession Act uses a similar two-year idea for its own purposes, but the Family Law Act is the statute that governs property division on separation.

Why title is not the whole story

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 being absent from title does not by itself remove the entitlement.

When the home may be excluded property

The titled spouse may argue the home is excluded property. Excluded property includes property acquired before the relationship began, inheritances to a spouse, and gifts to a spouse from a third party. A spouse claiming that property is excluded must demonstrate it.

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

• Bought before the relationship: may be excluded, but the growth in value is shareable.
• Inherited by the titled spouse: may be excluded, with the same growth rule.
• Bought during the relationship: generally family property, whoever is on title.

What each spouse can do while things are unresolved

• Agree in writing: spouses may divide property equally or unequally by agreement, and the agreement needs each spouse's signature witnessed by at least one other person.
• Seek a restraining order: on application, the Supreme Court must restrain the other spouse from disposing of property until that spouse establishes the claim will not be defeated, and this may be made before notice is served.
• Seek exclusive occupation: the court may grant one spouse exclusive occupation of the family residence for a specified period, including to the exclusion of the other spouse. This is temporary and does not transfer ownership.

A written agreement can be set aside in some cases, for example if a spouse failed to disclose significant property or debts, took improper advantage of vulnerability, or did not understand the agreement. Otherwise the court may not divide property covered by it.

What to do next

• Note the date the relationship began, the date you separated, and when and how the home was acquired.
• Gather the title search, mortgage statements, and records of who paid for what.
• Keep records of any inheritance or gift that went into the home.
• Remember the deadline: 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.
• Speak with a family lawyer before signing anything or agreeing to move out.

Frequently asked questions