- A home you acquired before the relationship is excluded property.
- The increase in its value since the later of the start of the relationship or its acquisition is family property and is shared.
- Adding your spouse to title does not by itself change the home's excluded status.
If you bought your home before the relationship began, you may assume it stays yours if you separate. That is partly true, but home prices can change a great deal over the years, and the growth is often the biggest question.
This article separates two ideas that people often mix up: the excluded property itself, and the increase in its value during the relationship.
This article covers the law of British Columbia.
Two different questions
Property acquired before the relationship began is excluded property under the Family Law Act. A home you owned before the relationship therefore starts out on the excluded side of the line.
Adding your spouse to the title does not by itself change that, because excluded status applies despite a transfer of ownership between spouses. The Province's guidance confirms that a pre-relationship home remains excluded property, but its increase in value is shared.
Who lives in the home while things are sorted out is a separate question from who owns it. The court may give a spouse exclusive occupation of a family residence for a specified period, even to the exclusion of the other spouse, but the order is temporary and does not transfer ownership.
How the increase in value works
The increase in value of excluded property since the later of the start of the relationship or the property's acquisition is itself family property. The relationship begins on the earlier of moving in together in a marriage-like relationship or marriage.
The government's example makes it concrete: a house worth $300,000 when the spouse moved in and $500,000 at separation leaves the owner the original $300,000, and the $200,000 increase is shared.
| Part of the value | Treatment |
|---|---|
| Value when the relationship began ($300,000 in the example) | Stays with the owner as excluded property |
| Increase to separation ($200,000 in the example) | Family property, shared |
Family property is generally valued at fair market value as of the date of the dividing agreement or the court hearing, not the separation date, unless an agreement or order says otherwise. Ownership is fixed at separation, though, and the court can adjust for post-separation value changes beyond market trends caused by a spouse.
To give effect to a division, the court can declare ownership, order a transfer, order compensation, or order a sale, which is how a buyout or a sale of a family home is ordered.
Proof and complications
The spouse claiming the home is excluded is responsible for demonstrating that it is excluded property. In practice, that usually means being able to show what the home was worth when the relationship began, which is why early records matter.
- Equal sharing is the starting point, but a court may order an unequal division if equal division would be significantly unfair, and the government says courts will not do so in most cases.
- The excluded home itself can be divided only if it cannot practically be divided outside British Columbia or if not dividing it would be significantly unfair.
- Spouses can agree in writing to change what is included or excluded, or to value items differently.
A spouse who claims property division in the Supreme Court files a financial statement in Form F8 under Rule 5-1. Income documents to attach include tax returns for the three most recent years, notices of assessment, and, for owners of real property, the latest property assessment notice.
If a person gives incomplete, false or misleading information, the court may order disclosure, draw an adverse inference, or make other orders.
How mortgage payments, renovations or contributions made during the relationship affect the calculation depends on the facts, and a lawyer can help you assess it.
Do you count as a spouse?
A person is a spouse if married, or if they have lived in a marriage-like relationship for a continuous period of at least 2 years. Having a child together does not make a couple spouses for property and pension division without that 2-year period.
Common-law couples in a marriage-like relationship for at least two years generally share property acquired during the relationship but not property brought into the relationship, and they can opt out by agreement.
What to do next
- Find the purchase documents and any appraisal or property assessment from around the start of the relationship
- Note the exact date you moved in together or married
- Gather mortgage statements and records of major improvements
- Get a current valuation when the time is right
- Speak with a lawyer before signing any agreement
Mind the deadline. A property proceeding must generally start within 2 years of the divorce judgment for married spouses, or of separation for spouses in a marriage-like relationship. The limit is suspended while the spouses are in family dispute resolution.
Frequently asked questions
Do I keep my house if I owned it before the relationship?
The home is excluded property, so the value it had at the start of the relationship generally stays with you. The increase in value since then is shared.
Does putting my spouse on title make the whole house shared?
Not by itself. Excluded status applies despite a transfer of ownership between spouses. The facts of your situation can still matter, so get advice.
Whose job is it to prove the home was excluded?
The spouse claiming that property is excluded is responsible for demonstrating it. Keep records that show the home's value and ownership at the start of the relationship.
What if we were never married?
If you lived in a marriage-like relationship for at least 2 years, you are a spouse under the Family Law Act. Having a child alone does not make you spouses for property division.
Sources
- BC Laws – Family Law Act, Part 5 — bclaws.gov.bc.ca
- Province of BC – What happens to family property when spouses separate? — www2.gov.bc.ca
- BC Laws – Family Law Act, Part 10 — bclaws.gov.bc.ca
- BC Laws – Family Law Act, Part 1 — bclaws.gov.bc.ca
- Province of BC – Common-law relationship property and debt — www2.gov.bc.ca
- BC Laws – Supreme Court Family Rules, Form F8 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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