Property division during divorce can be overwhelming. Deciding what will happen to the
matrimonial home is one of the most challenging aspects of the process of property division
during divorce. Who gets the house after a divorce? Should you move out? Will you jeopardize
your claim to a share of the marital home if you leave?
Let’s have a look at legal rights and entitlements with respect to the matrimonial home.
British Columbia Family Law Act
Matrimonial home is a commonly used phrase to refer to a marital home or family home. In our
province, we use the term “family residence.” Section 90 of the British Columbia Family Law Act
defines “family residence” as a residence that is: (a) owned or leased by one spouse or both,
and (b) the ordinary place of residence of the spouses.
So, a family residence can be owned or rented, and it can still be a family residence even if one
spouse’s name isn’t on the rental agreement or registered on title to the property.
Temporary Order for Exclusive Occupation of a Family Residence
If your home meets the definition of a family residence, either you or your spouse has the
option of relying on section 90 of the Family Law Act to ask the BC Supreme Court for an
exclusive occupancy order. That means the judge can order that one of you stays in the family
residence and the other must leave. To get an order for exclusive occupancy, the spouse who
applies must satisfy the judge that:
1. It’s a practical impossibility for the spouses to continue to share the family residence;
and
2. On a balance of convenience, the spouse who applied for the order should be the
preferred occupant of the family residence.
The judge can consider factors such as family violence, the interests of the children who
normally reside in the family residence, and the spouse’s financial circumstances and/or health
issues.
Making the Decision to Leave the Marital Home
We’ve talked about getting a court order to force one spouse to move out. Now, let’s talk
about making a personal choice to leave the home. When making this decision, you should
carefully consider the factors just listed, and any other important considerations. Can you
realistically continue to cohabit? Is there a threat or presence of violence? Can you afford to
move out? What will be the least disruptive living arrangement for your children? If you are
renting, will your landlord agree to remove your name from the lease (or transfer the lease to
your spouse’s name if they weren’t on the lease)?
You can and should talk to a family lawyer to get legal advice on whether to move out and how
that decision may impact important issues such as responsibility for household expenses and
parenting arrangements.
Matrimonial Home Rights British Columbia
Now for the big question: Do you lose your claim over the family residence if you move out
during separation or divorce? The short answer is no. If you have a legal right to a share of the
family residence, you do not lose that right by moving out.
Here are the specifics: you have a legal right to a share in the family residence if you (i) co-own
the property and/or (ii) qualify as a “spouse” under BC family law. Assuming you meet either or
both of those conditions, you can move out and doing so will not impact your matrimonial
home rights. British Columbia’s Family Law Act defines a spouse as a person who:
· is married to another person, or
· has lived with another person in a marriage-like relationship for a continuous period of
at least 2 years (i.e., common law spouses).
Things can be a bit trickier if your name is not registered on title to the property. If you qualify
as a “spouse” but the family residence is only in your spouse’s name, you should consider
taking steps—discussed below—to protect your interest in the property from being sold or
borrowed against (e.g., mortgaged or used as collateral for a loan) without your knowledge.
Steps you can take to protect matrimonial home rights
British Columbia statutes offer several options for separating spouses to protect their rights and
prevent unauthorized sale or borrowing against a family residence. The process of property
division during divorce can take some time, so it is worthwhile to consider taking steps to
protect your legal interests while you and your spouse are sorting through the issues arising
from the breakdown of your marriage.
If you and your spouse are going to court or have already started family court proceedings, you
can register a Certificate of Pending Litigation (”CPL”) on title to the family residence. The CPL
serves as a warning to any potential buyer or lender and prevents sale or refinancing without
notice to you.
If you and your spouse are not planning on going to court to resolve your family law issues, you
can protect your legal rights to the matrimonial home by filing a charge against the property
under the British Columbia Land (Spouse Protection) Act. The charge operates similarly to a CPL,
and it stays on title to the property until ownership/property division issues relating to the
home have been resolved.
Another option is to sign and file a notice of agreement against title to the family residence.
This is permitted by section 99 of the British Columbia Family Law Act. Once you and your
spouse have registered a written property agreement, there can be no sale or borrowing
against the property without the written consent of both spouses.
Get answers to your questions about matrimonial home rights
British Columbia residents who are going through separation or divorce can protect themselves
and maintain their rights to the family residence, even if they move out. If you are going
through a separation and want to know how the court will divide the former family home and
whether you should stay or move out, we welcome you to reach out for trusted 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 Law
Corporation. For more information about our family law office or to schedule a consultation
with our divorce lawyer, please call us today. We are here to help.
Valerie M. Little Law Corporation is a family law firm that is centrally located in New
Westminster and serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port
Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey,
Cloverdale, Delta, and Langley. For guidance and legal advice customized to your situation, we
welcome you to contact our family law firm today by email or telephone at 604-526-3333. Take
action, let’s talk today.
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