What Happens to the Family Home in a Separation in Manitoba

When a relationship ends, the house is usually the biggest question. You may be wondering who can stay, whether it has to be sold, and whether it matters whose name is on the title.

In Manitoba, these questions are handled by two different laws. This article explains how The Family Property Act treats the home as property, and how living in it is dealt with separately.

This article covers the law of Manitoba.

The home as a family asset

Under The Family Property Act, a family asset is an asset owned by one or both spouses or common-law partners and used for shelter or transportation, or for household, educational, recreational, social or aesthetic purposes, and it includes a family home. A family home is property in which a spouse or common-law partner has an interest and which is or was their family residence. If it is mainly used for non-residential purposes, only the part reasonably needed to use and enjoy the residence counts.

This means the home can count as a family asset even if only one of you is on the title, as long as that person has an interest in it and it was the family residence.

A common-law partner is someone who registered under section 13.1 of The Vital Statistics Act or who lived in a conjugal relationship, unmarried, for at least three years.

Does the home have to be sold?

No. Each spouse or common-law partner has the right on application to an accounting and, subject to section 14, equalization, and the total is generally divided into two equal shares. The Act does not itself require the home to be sold. In practice, one person may keep the home and account for the other's share, you may agree to sell, or you may reach another arrangement. Which option fits depends on your finances, any mortgage and what you agree.

Mortgage terms, lender consent and the cost of buying out the other person are practical matters to review with a lawyer and, where relevant, an accountant.

When the equal split can change

The court can alter the equal division of family assets if it would be grossly unfair or unconscionable, considering extraordinary financial or other circumstances or the extraordinary nature or value of the assets. Conduct is not considered unless it amounts to dissipation.

For commercial assets, a different standard applies: clearly inequitable, considering factors such as debts, agreements, length of cohabitation or separation, and gifted or inherited assets. If part of the property is used in a business, that distinction may matter.

Who can live in the home after separation

Ownership and occupation are separate issues. Exclusive occupation of the family home is a separate order under Part 5, section 80 of The Family Law Act. That Act defines a common-law partner as someone cohabiting in a conjugal relationship for at least three years, or one year if they are together the parents of a child.

So the Family Property Act deals with how the value of the home is shared, while a different order deals with who stays in it. Because the details of occupation orders were not covered here, a lawyer can explain when one may be available in your circumstances.

Time limits and next steps

There are deadlines to apply for an accounting. Spouses generally must apply within 60 days after a divorce takes effect or a nullity decree is completed. Common-law partners must apply within 60 days after a registered dissolution or, if unregistered, within three years after beginning to live separate and apart. The court may extend these periods.

• Gather the title, mortgage statements, property tax bills and a recent value estimate for the home.
• Write down the date you began living separate and apart.
• List other assets and debts, including anything gifted or inherited.
• Avoid selling, transferring or mortgaging the home before getting advice.
• Speak with a family lawyer early, since time limits may apply.

Frequently asked questions