Is Property Split Equally in BC After Separation?

Many people separating in British Columbia ask whether everything is simply split in half. The short answer is that equal sharing is the starting point, not an absolute rule.

This article explains the default rule, what falls outside it, and the limited situations where the split can change.

This article covers the law of British Columbia.

The default rule: equal sharing of family property

Under the Family Law Act, unless an agreement or order says otherwise, spouses are equally entitled to family property and equally responsible for family debt. Family property is everything the spouses own separately or together on the date of separation, whatever name it is in. Examples include the family home, RRSPs, investments, bank accounts and pensions.

The usual process is to identify what each spouse owns, separate family property from excluded property, identify family debt, value the property at fair market value, then divide equally unless an agreement or a significant-unfairness order applies. A court makes a division order only on a spouse's application.

What may be left out: excluded property

Excluded property includes property acquired before the relationship began, inheritances, gifts from a third party, most settlements or damages for injury or loss, and certain insurance proceeds, plus property derived from these. The spouse claiming property is excluded must demonstrate that it is.

There are exceptions. Settlements, damages and insurance money are not excluded to the extent they compensate for loss to both spouses or for lost income. 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 and is shared. Adding a spouse to title does not by itself change the exclusion.

Excluded property can be divided only if it cannot practically be divided outside B.C., or if not dividing it would be significantly unfair.

When the split may not be equal

• A written agreement: spouses may divide property and debt equally or unequally, change what is included or excluded, or value items differently.
• Setting an agreement aside: grounds include non-disclosure, one spouse taking improper advantage, or a spouse not understanding the agreement's nature.
• Significant unfairness: the court may order an unequal division if an equal one would be significantly unfair, though courts will not order this in most cases.

Factors for significant unfairness include the duration of the relationship, a spouse's contribution to the other's career or career potential, whether debt was incurred in the normal course of the relationship, and tax liability from a transfer, sale or order. A court cannot override a written, witnessed agreement unless it is set aside.

Valuation, pensions and common-law couples

Ownership is fixed as at separation, but unless an agreement or order says otherwise, value is measured at the date of the dividing agreement or court hearing. Pensions follow a separate regime: only the portion that is family property is shared, and it is divided under Part 6 unless an agreement or order provides otherwise.

Common-law couples are spouses for property division if they have lived in a marriage-like relationship for a continuous period of at least 2 years. Having a child alone does not make a couple spouses for property and pension division. Such couples generally share property acquired during the relationship but not property brought into it, and they can opt out by agreement.

What to do next

• Fix the date of separation, since ownership is measured then.
• List assets and debts, and sort out which may be excluded, with proof of where they came from.
• Gather income and property documents for financial disclosure.
• Have a lawyer review any agreement before you sign.
• Watch the deadline for starting a proceeding.

A proceeding must generally be started no later than 2 years after the divorce judgment for married spouses, or after separation for spouses in a marriage-like relationship.

Frequently asked questions