What Happens to the Family Home When a Couple Separates in British Columbia?

For most couples the home is the largest asset and the most emotional one. When you separate, you may be asking who stays, who pays the mortgage, and whether the house must be sold.

British Columbia law gives a framework for ownership, occupation, buyouts and sale. Your own situation will depend on your agreement, the history of the home and the debt on it.

This article covers the law of British Columbia.

Ownership: title does not decide

The family home is family property regardless of whose name is on title, and 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, unless an agreement or order says otherwise.

An exception applies if one spouse owned the home before the relationship. It remains excluded property, but its increase in value is shared. A court may order an unequal division only if equal division would be significantly unfair.

Who can live in the home

The court may give one spouse exclusive occupation of a family residence for a specified period, even to the exclusion of the other spouse. The order does not create a proprietary interest or allow material alteration.

Such an order is temporary and does not transfer ownership, and the court can postpone the other owner's sale or disposal rights and change the order. Spouses can also be separated while still living in the same residence.

Buyout, sale or something else

• Agreement: spouses can agree in writing to divide property and debt equally or unequally, and a court cannot override a written, witnessed agreement unless it is set aside.
• Buyout: one spouse keeps the home and compensates the other. A court can declare ownership, order a transfer or order compensation.
• Sale: the court can order a sale of the home.
• Security or indemnities: the court can order these to give effect to a division.

The home is generally valued at fair market value as of the date of the dividing agreement or the court hearing, unless an agreement or order says otherwise. The court makes a division order only on a spouse's application.

The mortgage is a separate question. 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. A debt in one name can still be family debt and shared between spouses. How a lender treats a mortgage when one spouse stays is a matter for the lender, so speak with them and a lawyer before committing.

Protecting your interest while things are sorted out

On a spouse's application, the court must make an order restraining the other spouse from disposing of 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.

• A party to a property division proceeding may register a certificate of pending litigation against land whose title could change as an outcome.
• The claim must be a proprietary one, and the court can cancel the certificate if the pleading does not support an interest in land.
• A spouse who is party to a property agreement may file a notice of agreement against land, so that transfers or mortgages require its cancellation or postponement.
• The court may order an interim distribution of disputed property, for example to fund family dispute resolution, if it would not be harmful to a spouse's interests.

What to do next

Mind the time limit. A property proceeding must generally start within 2 years of the divorce judgment for married spouses, or of separation for spouses in a marriage-like relationship. It is suspended during family dispute resolution.

• Get the title search, mortgage statements and property assessment
• Note the date you separated
• Prepare your financial information; the Supreme Court requires Form F8
• Avoid selling, mortgaging or moving out without advice
• Speak with a lawyer about your options

Frequently asked questions