Who Keeps the House in a Divorce in British Columbia?

For most separating couples the house is the biggest asset and the biggest worry. You may be asking whether you can stay, whether you have to sell, or whether the home is really yours because your name is the only one on the deed.

This article explains how the Family Law Act treats the family home in British Columbia, what the usual options are, and what temporary protections exist while things are sorted out. It is general information, not advice on your situation.

This article covers the law of British Columbia.

Title does not decide who keeps the house

Many people assume the person named on title keeps the home. In British Columbia that is not how it works. 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 is family property regardless of whose name is on title, and it is shared equally unless an agreement or significant unfairness applies. Unless an agreement or order says otherwise, each spouse holds an undivided half interest in family property as a tenant in common on separation.

A spouse can be a married spouse or someone who has lived in a marriage-like relationship for a continuous period of at least 2 years, and a spouse includes a former spouse. Having a child together does not make an unmarried couple spouses for property division without that 2-year period.

When the home is excluded property

Property acquired before the relationship began is excluded property, as are inheritances and gifts from a third party. If you say the home is excluded, you are the one who must show that it is.

Excluded does not always mean untouched. The increase in value of excluded property since the later of the start of the relationship or its acquisition is itself family property and is shared. The government gives this example: a house worth $300,000 when the spouse moved in and $500,000 at separation leaves the owner the original $300,000, and the $200,000 increase is shared.

Adding a spouse to title does not by itself change the excluded status. Excluded property can be divided only in narrow cases, such as where not dividing it would be significantly unfair.

Buyout, sale or transfer

Because the home is usually shared, the practical question is how to turn that sharing into an outcome. Spouses can agree in writing to divide property equally or unequally, or to value items differently. Many couples settle the home this way, by one spouse buying out the other or by selling and splitting the proceeds.

If you cannot agree, the court makes a division order only on a spouse's application. To give effect to a division the court can declare ownership, order a transfer, order compensation, order a sale, order security, or order debt indemnities. That is how a buyout or a sale of the family home is ordered.

Family property is generally valued at fair market value as of the date of the dividing agreement or the court hearing, not the separation date. A court can also order unequal division if equal division would be significantly unfair, but the government says courts will not order that in most cases.

If there is a mortgage, remember that a division between spouses does not bind the lender, and the lender's rights are unaffected. How a lender treats a buyout or a change of borrowers varies, so speak to your lender early.

Staying in the home for now, and protecting it

The court may give one spouse exclusive occupation of a family residence for a specified period, even to the exclusion of the other spouse. This is temporary, does not transfer ownership, and the court can change the order.

Other tools protect the property while a dispute is under way:

• A restraining order against disposing of disputed property: on application the court must make one unless the other spouse shows the claim will not be defeated or adversely affected, and it can be made before the other spouse receives notice.
• A certificate of pending litigation on land, available to a party to a Family Law Act property division proceeding where title could change as an outcome. It requires a started proceeding that claims an interest in land, and a mere damages claim is not enough.
• A notice of agreement filed in the land title office by a spouse who is party to a property agreement, so transfers or mortgages then require cancellation or postponement of the notice.
• An interim distribution of disputed property, if it would not be harmful to a spouse's interests, to fund family dispute resolution or a proceeding.

What to do next

• Gather the title search, mortgage statements, property assessment notice and any purchase or gift documents showing when and how the home was acquired.
• Work out the date of separation, since ownership is fixed as at separation. Spouses may be separated while living in the same residence.
• Do not sell, transfer or borrow against the home without advice while things are unsettled.
• Note the deadline: a property proceeding generally must be started no later than 2 years after a divorce judgment for married spouses, or after separation for spouses in a marriage-like relationship.
• Get legal advice before signing any agreement, because a written, witnessed agreement is hard to undo.

Frequently asked questions