- On separation each spouse has a right to an undivided half interest in all family property, subject to any agreement or order.
- 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.
- An agreement can be set aside if a spouse failed to disclose significant property or debts.
If you think your spouse may sell the house, move money or hide assets, you may feel you need to act quickly. British Columbia law has tools aimed at exactly this worry, although which ones fit depends on your situation.
This article explains the main protections in the Family Law Act, how they work in general terms, and what to gather before you speak to a lawyer.
This article covers the law of British Columbia.
Your starting position on family property
Spouses are both entitled to family property. 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.
Some property is excluded, such as property acquired before the relationship began, inheritances, and gifts from a third party. A spouse claiming that property is excluded must demonstrate it. Even so, an increase in the value of excluded property during the relationship can still be divided.
Restraining orders against selling or disposing of property
The Supreme Court must make an order restraining a spouse from disposing of property at issue under the property or pension division parts of the Act, unless that spouse establishes that a claim will not be defeated. Such orders can be made before the other spouse is served with notice.
A spouse may apply for orders about property division at any time before a final agreement or final order is made on property division. Property division is heard in the Supreme Court, because the Provincial Court does not deal with it except for companion animals.
Whether a sale could actually be stopped can depend on who is on title, what has already been signed and how quickly you act. A lawyer can tell you how this applies to your home.
Staying in the home: exclusive occupation
The Supreme Court can make a temporary order giving a spouse exclusive occupation of a family residence for a specified period, including to the exclusion of the other spouse. This order does not transfer ownership or a proprietary interest.
So an occupation order deals with who lives in the home for a time. It is different from an order that protects the property from being sold.
Disclosure and hidden assets
Family property is valued at fair market value, and its value and family debt are determined as of the date of the agreement or the hearing. You cannot divide fairly what you do not know about, so full information about property and debt matters.
| Protection | What it does |
|---|---|
| Restraining order | Restrains a spouse from disposing of property at issue. |
| Exclusive occupation order | Gives temporary occupation of the family residence without transferring ownership. |
| Setting aside a property agreement | The court may set aside or replace all or part of an agreement if a spouse failed to disclose significant property or debts. |
| Setting aside a support agreement | A written spousal support agreement can be set aside on grounds such as non-disclosure, and also if it is significantly unfair. |
Setting aside an agreement is not automatic. The court may decline if the result would not be substantially different from the agreement.
What to do next
- Collect copies of title documents, mortgage statements, bank and investment statements, and recent tax records.
- Write down what you own, what you owe and what you believe your spouse holds.
- Note anything unusual, such as large transfers or listings, with dates.
- Do not sign an agreement until you understand what property and debts it covers; BC government guidance recommends independent legal advice before settling property.
- Speak to a lawyer promptly if you fear a sale or transfer, since a restraining order can be sought before the other spouse is served with notice.
If you and your spouse are talking, family dispute resolution is a process used to attempt to resolve a family law dispute outside court.
Frequently asked questions
Can my spouse legally sell our house after we separate?
Separation gives each spouse a right to an undivided half interest in family property, subject to any agreement or order. Whether a particular sale can be stopped depends on the facts, so get legal advice quickly if you are worried.
Does the court need to tell my spouse before it restrains them?
No. Restraining orders under the property division rules can be made before the other spouse is served with notice.
Does an exclusive occupation order mean I own the house?
No. It is a temporary order about who lives in the family residence and does not transfer ownership or a proprietary interest.
What if I find out later that my spouse hid assets?
The court may set aside or replace all or part of a property agreement if a spouse failed to disclose significant property or debts. A time limit applies to applying to set aside an agreement, running from when you first discovered or reasonably ought to have discovered the grounds, and it is 2 years.
Sources
- Family Law Act, Part 5, s.81 — bclaws.gov.bc.ca
- Province of British Columbia – Dealing with Property and Debt — www2.gov.bc.ca
- Family Law Act, Part 7, s.164 — bclaws.gov.bc.ca
- Province of British Columbia – Do I need a lawyer to separate or divorce? — www2.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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