Can My Spouse Sell or Spend Family Property After We Separate in BC?

After separation, it is common to worry that a spouse will sell the house, empty an account or move assets out of reach before anything is divided. Your name not being on title does not mean you have no interest.

This article explains your rights in British Columbia, the tools that can help protect property, and what can happen if assets are sold or spent. It is general information, not advice on your situation.

This article covers the law of British Columbia.

Your interest does not depend on whose name is on title

Family property is everything the spouses own, separately or together, on the date of separation, and it does not matter whose name it is in. On separation each spouse holds an undivided half interest in family property as a tenant in common, unless an agreement or order says otherwise.

The family home is family property regardless of title. Property a spouse disposed of after the relationship began is still family property if that spouse keeps authority to require its return or direct its use.

Asking the court to stop a sale or transfer

On a spouse's application, the court must make an order restraining the other spouse from disposing of the disputed property, unless that spouse shows the claim will not be defeated or adversely affected. The order can be made before the other spouse receives notice, and it can later be changed, suspended or terminated.

Because the burden is on the spouse who wants to deal with the property, this can be a strong tool. Whether it fits your situation depends on what property is at risk, so speak with a lawyer promptly.

Protecting land and the family home

• Certificate of pending litigation: a party to a Family Law Act property division proceeding may register one against any interest in land whose title could change as an outcome. A Family Law Act proceeding must use Form 33 (Family Law Act).
• Limits: it requires a started proceeding that claims an interest in land. A mere damages claim is not enough, and the court can cancel it if the pleading does not support an interest in land.
• Notice of agreement: if you have a property agreement, a spouse who is party to it may file a notice of agreement against land, after which transfers or mortgages require cancellation or postponement of the notice.
• Exclusive occupation: the court may give one spouse exclusive occupation of the family residence for a specified period. It is temporary, does not transfer ownership, and the court can postpone the other owner's sale or disposal rights.

If property has already been sold, spent or hidden

The court can divide family property unequally if equal division would be significantly unfair. One factor is a spouse substantially reducing property value or disposing of, transferring or converting property other than in good faith.

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.

Disclosure matters here. The court can order a party to disclose information. If someone fails to comply or gives incomplete, false or misleading information, the court may draw an adverse inference, require security, order payment of expenses, or order an amount up to $5,000 to a party, or impose a fine up to $5,000.

Courts will not order unequal division in most cases, so how it applies depends on the facts.

What to do next

• Record what you know now: account numbers, property addresses, vehicles, and recent statements.
• Save evidence of any unusual transfers, withdrawals or listings.
• Do not wait if you think a sale is imminent. Ask a lawyer promptly about a restraining order or a certificate of pending litigation.
• Remember the time limit: a proceeding to divide property generally must be started within 2 years of a divorce judgment for married spouses, or of separation for marriage-like relationships. It is suspended during family dispute resolution.
• If funds are needed for dispute resolution or legal steps, ask whether an interim distribution of disputed property is possible.

Frequently asked questions