Do I Have to Sell the House After Separating in BC?

Separation raises a hard question quickly: what happens to the home? Many people worry they will be forced to sell, or that being left off title means losing their share.

In British Columbia, a sale is one possible outcome, not a rule. This article explains how the home is treated, what alternatives exist, and how to protect your position while things are sorted out.

This article covers the law of British Columbia.

How the family home is treated

The family home is family property regardless of whose name is on title. It is shared equally unless an agreement or significant unfairness applies. On separation each spouse holds an undivided half interest in family property as a tenant in common.

If the home was owned before the relationship, it remains excluded property, but its increase in value 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. The spouse claiming that property is excluded is responsible for demonstrating that it is.

These rules apply to spouses. 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, and a spouse includes a former spouse. Having a child together does not by itself make a couple spouses for property division without that 2-year period.

Ownership is fixed as at separation, while value is measured at the date of the agreement or hearing. Spouses are not treated as separated if they reconcile within one year and live together for at least 90 days in total, and spouses may be separated while living in the same residence.

Can a sale be forced?

To give effect to a division, the court can declare ownership, order a transfer, order compensation, order a sale, order security, or order debt indemnities. That is how a buyout or a sale of the home is ordered. The court makes a division order only on a spouse's application.

So whether a sale happens depends on what you agree and what, if anything, a court orders. A written agreement can divide property and debt equally or unequally.

A court may order an unequal division if an equal division would be significantly unfair, though the government says courts will not order unequal division in most cases. The factors include the duration of the relationship and a spouse's contribution to the other's career or career potential.

Alternatives to selling

• A buyout: one spouse keeps the home and the other receives a transfer or compensation, which a court can order if you cannot agree.
• Staying put for a time: a court may give a spouse exclusive occupation of the family residence for a specified period, even to the exclusion of the other spouse.
• A written agreement setting out who keeps the home and how it is valued.

Exclusive occupation is temporary and does not transfer ownership. The court can postpone the other owner's sale or disposal rights and can change the order.

Value is measured at the date of the agreement or hearing, not the separation date, unless an agreement or order says otherwise.

The mortgage and protecting your interest

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. How a lender treats a mortgage when one spouse stays in the home varies, so check with the lender and a lawyer.

To protect the home while the dispute continues, a spouse can apply for an order restraining the other spouse from disposing of the disputed property. On that application, the court must make the order unless the other spouse shows the claim will not be defeated or adversely affected, and it can be made before the other spouse receives notice. A party to a property division proceeding may also register a certificate of pending litigation against land whose title could change. It needs a started proceeding claiming an interest in land. Spouses who have a property agreement may file a notice of agreement against the land.

Financial information matters too. A court may order a party to disclose information, and a spouse claiming property division in the Supreme Court must file a financial statement in Form F8 under Rule 5-1. Provincial Court cannot divide property under Part 5 of the Family Law Act.

What to do next

• Get a current valuation or appraisal of the home.
• Collect the title, mortgage statements and property assessment notice.
• Do not sell, transfer or mortgage the home without advice.
• Ask a lawyer whether a restraining order or certificate of pending litigation fits your situation.
• Keep the time limit in mind: generally 2 years from the divorce judgment for married spouses, or from separation for marriage-like relationships.

The 2-year time limit is suspended while the persons are in family dispute resolution with a family dispute resolution professional or a prescribed process. How the limit applies to you depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions