Who Gets the House After Divorce in BC?
The end of a marriage raises significant emotional, practical and financial issues. A major area of concern is what happens to the family home.
For many, the home is shelter, security, and the centre of their daily life and the lives of their children. For most people the home is also their most valuable asset. In this post, our BC family lawyer will discuss the rules that apply to division of family property and who gets the house after divorce in BC.
The general rule: Your house is “family property”
BC’s Family Law Act sets out the rules for dividing property and debt when spouses separate and it applies to both legally married spouses and to common-law spouses who have been living together in a marriage-like relationship for at least two years. Everything that the spouses own separately or together on the date they separate is considered “family property” under BC law. See here for our family lawyer’s discussion of how to determine your separation date. The general rule is that your house is “family property” under the law in BC even if title to the property is not in your name.
Family property is shared equally, and so is family debt
The default under BC family law is that family property and family debt are shared equally when the spouses separate regardless of their respective use or contribution to the property. That means that each spouse is entitled to a ½ interest in all family property such as a house owned by the spouses on the date they separate regardless of whose name is on title to the house. It also means that both spouses are equally responsible for family debt such as the mortgage on the house.
There are situations where equal division does not apply
While equal division is the default, there are exceptions:
• If the spouses made an agreement about property and debt at the start of their relationship, (e.g., a Marriage Contract or Cohabitation Agreement), then property and debt will be divided in the way they agreed.
• When spouses separate or divorce, they can agree to divide property and debt unequally by negotiating a Separation Agreement or a Consent Order.
• Some property is considered “excluded property” under BC family law and is not subject to the general rule of equal entitlement:
o Property such as a house or condo bought by one spouse before the marriage or common-law relationship began is presumed to be excluded property.
o Gifts and inheritances to one spouse are excluded property, and if such a gift or inheritance is used to buy property such as a house during the relationship that house is presumed to be excluded property unless title to the property is registered in both spouses’ names.
The onus of proving that property is excluded is on the spouse who is making the claim of excluded property. If property is excluded, there are special rules that apply which are discussed below.
Increase in value of excluded property is divided equally
While the excluded property itself is not family property and is not divided equally, the increase in value of the excluded property is family property that is presumptively equally shared. So if one spouse came into the marriage owning a house, the full value of the house is not subject to equal division. In other words, the spouse gets to keep the value of the asset they brought into the relationship. However, the increase in the value of the house over the course of the relationship is equally shared. For example, if one spouse comes into the marriage owning a house worth $500,000 and it is worth $600,000 at the time of separation, the $100,000 increase is family property that is divided equally between the spouses.
Who gets to live in the house when spouses separate?
If you are thinking about separating or are in the process of separation, the question of who gets to continue living in the house post-separation is a different issue. Neither spouse is required to move out unless one spouse obtained a court order for exclusive occupancy or there are certain no contact orders in place as a result of a criminal proceeding. Both spouses can reside in the same house and still be separated as long as they are living “separate and apart.” While a spouse will not lose their entitlement to a share in the house if they move out, there can be significant consequences to moving out and other legal rights may be impacted by the decision to move out of the former family home. It is highly recommended that you speak with an experienced family lawyer before making a decision to stay or move out of the family home.
Do you have questions about who gets the house after divorce in BC?
If you are going through a separation and want to know how the court will divide the former family home and determine who will retain the occupancy of the home, get legal advice from a skilled BC divorce lawyer. No matter what family law questions or issues you might be facing, you will receive practical up to date legal advice about your personal situation at the office of Valerie M. Little. For more information about our family law office or to schedule a consultation with our family lawyer, please call us today. We are here to help.