- Moving out does not by itself take away your half interest in family property, because each spouse has a right to an undivided half interest on separation, subject to any agreement or order.
- A parent who lived with the child stays a guardian after moving out, because moving out does not itself end guardianship.
- Deadlines for property and spousal support claims can run from separation for unmarried spouses, so it is worth getting advice early.
Separation often raises an urgent question: should one of you leave the home? Many people worry that if they move out, they will give up their share of the house or weaken their place in their children's lives.
In British Columbia, the Family Law Act deals with this directly. This article explains what moving out generally does not change, what can still matter, and what tools the court has if things become tense. Your own situation may differ, so a lawyer can confirm how the rules apply to you.
This article covers the law of British Columbia.
Your share of family property when you move out
Spouses are both entitled to family property and responsible for family debt. On separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, subject to any agreement or order, and for an unmarried couple this applies to property division only once they have lived in a marriage-like relationship for at least two years. Nothing in that rule depends on who stays in the home.
Family property is valued at fair market value, and its value and the family debt are determined as of the date of the agreement or the hearing, not the date someone moved out.
There are exceptions to equal division. Excluded property includes property acquired before the relationship began, inheritances and gifts from a third party, and the spouse claiming it is excluded must demonstrate that. Even so, an increase in the value of excluded property during the relationship can still be divided. The Supreme Court can also order an unequal division if equal division would be significantly unfair, and spouses can agree to a different split.
Parenting and guardianship after you leave
Each parent who lived with the child is the child's guardian, including after the parents separate. Moving out does not itself end guardianship. Only a guardian may have parental responsibilities and parenting time.
There are exceptions. A parent who has never lived with the child is not a guardian unless they meet listed exceptions, such as regularly caring for the child, and an agreement or order can provide that a parent is not a guardian.
Where to live is a practical choice, but it does not decide those interests on its own.
Debts, separation and living under one roof
- Family debt includes all financial obligations incurred by a spouse from the start of the relationship until separation.
- Debts incurred after separation count only if they were incurred to maintain family property.
- Spouses may be separated despite continuing to live in the same residence.
- BC government guidance says there is no such thing as a legal separation, and that spouses can be separated under one roof if a clear intention of permanent separation has been communicated and acted upon.
This means you do not have to move out to be separated, and moving out is not what creates your rights. The separation date can matter for debt and for deadlines, so keep a record of when and how you communicated that the relationship was over.
Court orders that can affect the home
If you and your spouse cannot agree on who stays, the Supreme Court can make a temporary order giving one spouse exclusive occupation of the family residence for a specified period, including to the exclusion of the other spouse. That order does not transfer ownership or a proprietary interest.
If you are worried that a spouse may sell or give away property, the Supreme Court must make an order restraining a spouse from disposing of property at issue unless that spouse establishes that a claim will not be defeated. These orders can be made before the other spouse is served with notice.
| Order | What it does | What it does not do |
|---|---|---|
| Exclusive occupation | Gives one spouse the residence for a specified period | Transfer ownership |
| Restraining order | Stops disposal of property at issue | Decide the final division |
Deadlines and what to do next
Under the Family Law Act, claims for property division, pension division or spousal support must be started within 2 years. For married spouses the period runs from the divorce judgment, and for unmarried spouses in a marriage-like relationship it runs from the date they separated. There are exceptions: a married person claiming spousal support under the federal Divorce Act has no time limit. A spouse can apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds, the limit does not apply to spousal support reviews under sections 168 or 169, and the time stops running during family dispute resolution or a prescribed process. The two-year limit does not cover child support or parenting claims.
- Write down your separation date and how it was communicated.
- Gather records of property, savings and debts, and keep paying shared obligations where you can.
- Keep up your involvement with your children and your parenting routine.
- Before signing any agreement, speak to a lawyer, since BC government guidance recommends independent legal advice before settling parenting, support or property.
- Ask a lawyer about your deadline, especially if you were not married or if you are unsure which law applies.
A lawyer is not required to make an agreement, but BC government guidance says it is very important to speak to a lawyer before signing a document that settles matters with a spouse.
Frequently asked questions
If I move out, do I lose my right to the house?
Not because you moved out. On separation each spouse has a right to an undivided half interest in family property, subject to any agreement or order. Excluded property and unequal division are exceptions, so ask a lawyer about your facts.
Does moving out make me a less important parent?
No. A parent who lived with the child stays a guardian after moving out, because moving out does not itself end guardianship. Parenting decisions are based on the best interests of the child.
Can we be separated while still living in the same house?
Yes. Spouses may be separated despite living in the same residence, and the court may consider evidence such as one spouse communicating an intention to separate permanently.
Is there a deadline to make a claim if I am not married?
For property division, pension division and spousal support under the Family Law Act, the claim must be started within 2 years, which runs from the divorce judgment (or nullity order) for married spouses and from the date of separation for unmarried spouses in a marriage-like relationship, but a married person claiming spousal support under the federal Divorce Act has no time limit. A spouse may apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds. The 2-year limit does not apply to spousal support reviews under ss.168 or 169, and the time stops running during family dispute resolution or a prescribed process. Child support and parenting claims are not subject to that limit.
Sources
- Family Law Act, SBC 2011, c 25, Part 1 (BC Laws) — bclaws.gov.bc.ca
- Province of British Columbia – Am I separated? — www2.gov.bc.ca
- Family Law Act, Part 5, s.81 — bclaws.gov.bc.ca
- Province of British Columbia – Dealing with Property and Debt — www2.gov.bc.ca
- Province of British Columbia – Do I need a lawyer to separate or divorce? — www2.gov.bc.ca
- Family Law Act, s.198(2) — bclaws.gov.bc.ca
- Province of British Columbia – Spousal support — www2.gov.bc.ca
- Family Law Act, Part 4, ss.39-40 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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