What Is Family Property Under the BC Family Law Act?

If you are separating, a key question is what is actually on the table to be shared. In British Columbia, that depends on whether an asset is family property or excluded property under the Family Law Act.

This article explains the definition, gives common examples and covers the tricky spots such as gifts, inheritances and trusts. It is general information, not advice on your own assets.

This article covers the law of British Columbia.

The basic definition

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. The family home, RRSPs, investments, bank accounts and pensions are examples.

The Act also spells out that family property includes shares or interests in a corporation, partnership or business interests, refunds (including income tax), money in a financial institution account, and a spouse's entitlement under an annuity, pension, retirement savings or income plan.

Who owns family property

Unless an agreement or order says otherwise, spouses are equally entitled to family property, and on separation each holds an undivided half interest as a tenant in common. Title does not decide who keeps the house: the family home is family property regardless of whose name is on title.

These rules apply to spouses, meaning people who are married or who have lived in a marriage-like relationship for a continuous period of at least 2 years. Having a child together does not make a couple spouses for property and pension division without that 2-year period.

What is excluded property

Excluded property includes property acquired before the relationship began, inheritances, gifts from a third party, most settlements or damages for injury or loss, and certain insurance proceeds, plus property derived from any of these. The spouse claiming that property is excluded is responsible for demonstrating that it is.

Tricky spots

• Increase in value: the increase in excluded property since the later of the start of the relationship or its acquisition is family property and is shared.
• Adding a spouse to title: excluded status applies despite a transfer of legal or beneficial ownership between spouses, so adding a spouse to title does not by itself change the exclusion.
• Settlements and insurance: they are not excluded to the extent they compensate for loss to both spouses or for lost income, and property insurance proceeds are not within the insurance exclusion.
• Property given away: property a spouse disposed of after the relationship began is still family property where the spouse keeps authority to require its return or direct its use.
• Trusts: trust property a spouse contributed is family property if the spouse is a beneficiary with a vested interest not subject to divestment, can transfer the property to themselves, or can terminate the trust with the property reverting to them.

Excluded property can be divided only in narrow cases, such as where it cannot practically be divided outside B.C. or where not dividing it would be significantly unfair.

Valuing it and what to do next

Ownership is fixed at separation, while value is generally measured at the date of the agreement or court hearing at fair market value. Pensions are valued under a separate part of the Act.

• Make a list of every asset and debt as of the separation date.
• Mark each item as acquired before the relationship, inherited or gifted, or acquired during the relationship.
• Collect statements, deeds and records that prove the source and date of any excluded property.
• Ask for the other spouse's records if needed, because a court can order disclosure of information.
• Get legal advice on trusts, businesses and pensions, which are often complicated.

A proceeding to divide property must generally be started within 2 years of the divorce judgment for married spouses, or of the separation date for spouses in a marriage-like relationship.

Frequently asked questions