Best Way for Unmarried Couples to Own a Home in British Columbia

If you and your partner are buying a home without being married, you have to make choices that married couples often make without noticing. How will title be held, who gets what share, and what happens if you separate or one of you dies?

There is no single best answer. The right choice depends on what each of you pays, how long you expect to be together, and what you want to happen on death. This article explains the options and the rules that apply.

This article covers the law of British Columbia.

Tenants in common or joint tenants

Where land is transferred to two or more people, they are tenants in common unless a contrary intention appears in the instrument. If the interests are not stated, they are presumed to be equal. Tenants in common can hold unequal shares only if the shares are stated.

A true joint tenancy requires identical interests, with the four unities of title, time, possession and interest, and on a joint tenant's death the right of survivorship passes the interest to the survivor.

Matching title to what you each contribute

If one of you puts in a larger down payment, equal shares may not feel fair. Unequal shares can be recorded on title if the shares are stated. As an example of how this looks in the land title system, if A conveys a quarter interest to B, A is registered as to a 1/4 interest and B as to a 3/4 interest.

Title is only part of the picture. A written agreement between you can set out who paid what, who covers mortgage and repairs, and what happens if one of you wants out. Each of you should have the chance to get your own advice before signing.

• Record each person's down payment and ongoing contributions.
• Decide whether shares will be equal or unequal.
• Decide what happens on separation, including who can buy the other out.
• Decide what happens on death, and make wills that match.

When the Family Law Act treats you as spouses

Under the Family Law Act, a person is a spouse if married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. The Wills, Estates and Succession Act uses a similar test, and persons cease to be spouses when a marriage-like relationship ends.

Once you are spouses, both of you are entitled to family property and responsible for family debt regardless of use or contribution, and on separation each spouse has a right to an undivided half interest in all family property as a tenant in common. That can differ from the shares shown on title.

There are exceptions. Excluded property includes property acquired before the relationship began, inheritances and gifts from a third party, and a spouse claiming property is excluded must demonstrate it. The increase in value of excluded property since the later of the relationship start or acquisition date is family property. The Supreme Court may also order an unequal division if equal division would be significantly unfair.

Agreements, deadlines and breakups

Spouses may make written agreements to divide property equally or unequally, and each spouse's signature must be witnessed by at least one other person. The court may set an agreement aside if, for example, a spouse failed to disclose significant property or debts or did not understand it, and may not divide property covered by an agreement unless it is set aside.

For unmarried spouses, a proceeding to divide property must be started no later than 2 years after the date of separation, and the limit is suspended while the spouses are engaged in family dispute resolution with a professional.

If you cannot agree about the home, co-owners may be compelled to partition or sell the land, and if interested parties holding at least half the property request a sale the court must order it unless it sees good reason to the contrary.

What to do next

• Decide together whether you want tenancy in common or joint tenancy.
• Write down each person's contribution and the shares you intend.
• Get a written agreement drafted and signed with witnesses.
• Update your wills and beneficiary designations.
• Speak to a lawyer before closing, so title and agreement match.

Frequently asked questions