Is Property Split Equally in British Columbia After Separation?

You may have heard that everything is split equally when spouses separate in British Columbia. That is a good rough starting point, but it is not the whole story, and the details matter for what you keep.

This article explains the equal-sharing rule under the Family Law Act, what it covers and the situations where the result can differ. It is general information only.

This article covers the law of British Columbia.

The short answer: equal is the default

Unless an agreement or order says otherwise, spouses are equally entitled to family property and equally responsible for family debt. On separation, each spouse holds an undivided half interest in family property as a tenant in common.

So equal sharing is the starting presumption, not a guarantee. The process is to identify property and debt, value them, then divide equally unless an agreement or a significant-unfairness order applies.

What the equal-sharing rule actually covers

The equal split applies to family property, which is everything the spouses own separately or together on the date of separation, whoever's name it is in. That includes the family home, RRSPs, investments, bank accounts and pensions.

It does not usually reach excluded property, such as property acquired before the relationship began, inheritances and gifts from a third party. The spouse claiming property is excluded must demonstrate that. However, the increase in value of excluded property since the later of the start of the relationship or its acquisition is shared. In the government's example, 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.

Equal sharing also applies to spouses only. 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.

When the split is not equal

What counts as significantly unfair

The bar is high, and the government says courts will not order unequal division in most cases. When the court looks at the question, the Act lists factors, including:

• 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.
• A spouse substantially reducing property value, or disposing of or converting property other than in good faith.
• Tax liability from a transfer, sale or order.
• Any other factor causing significant unfairness.

If you think the other spouse is hiding or moving assets, the court can order a restraint on disposing of disputed property, and on a spouse's application it must make that order unless the other spouse shows the claim will not be defeated or adversely affected.

Debt is shared, but lenders are not bound

Equal responsibility applies to family debt, so a debt in one name can still be family debt and shared. But a division between spouses does not bind a lender, and a debt in one spouse's name remains owed to the creditor by that spouse.

Where debt exceeds property value, the court can weigh each spouse's ability to pay a share. The court can also order indemnities, compensation or security to give effect to the division.

What to do next

• Find any agreement you signed, such as a cohabitation or marriage agreement, and have it reviewed.
• Separate your assets into three groups: owned before the relationship, inherited or gifted, and everything else.
• Keep records showing the value of excluded property and any increase in value.
• Note the date of separation and the date any divorce order is made, because time limits run from them.
• Ask a lawyer whether your facts could support or defeat a claim of significant unfairness.

Time limits matter here. A proceeding to divide property generally must be started within 2 years of the divorce judgment for married spouses, or of the separation date for spouses in a marriage-like relationship, but that limit is suspended while the spouses are in family dispute resolution with a family dispute resolution professional or a prescribed process. A separate 2-year window applies to applications to set aside or replace an agreement, running from when the spouse discovered or ought to have discovered the grounds. How these deadlines apply to you depends on your situation, so it is worth confirming with a lawyer early.

Frequently asked questions