Who gets the house in a divorce in BC?

It is almost always the first question. Before anyone asks about parenting schedules or pensions or what a lawyer costs, they ask about the house. Who gets to stay in it, who has to leave, and whether the person whose name is on the title has already won.

Here is the short version. In British Columbia, nobody automatically gets the house. There is no rule that the mother keeps it, or that the Dad does, no rule that the person on title keeps it, and no rule that whoever moves out has given it up. What the law divides is the value, and there are several different ways the house itself can land.

That is good news, because it means this is a decision you get to make rather than one that gets made for you.

Whose name is on title matters far less than people think

Under BC’s Family Law Act, property either spouse owns at the date of separation is family property, and the family home is the most obvious example. If the house is in one name only, it is still family property. If it was bought before the wedding but during the years you lived together, it is still family property. If one of you never contributed a dollar to the mortgage, it is still family property.

This applies to unmarried spouses too. In BC, people who have lived together in a marriage-like relationship for at least two years have the same property rights as married spouses. That surprises people every week, in both directions.

The presumption is an equal split of the family property, which for most families means the equity in the home is shared 50/50. Two things can move that number: excluded property, and significant unfairness. Both are covered below.

The down payment question, and the trap inside it

This is where most home disputes in BC live.

Some property is excluded from the equal split. The most common categories are property you owned before the relationship began, inheritances, and gifts to you from someone outside the relationship. If you owned a condo before you met, or your grandmother left you $80,000, that value can come off the top before the rest is divided.

The catch is that only the original value is excluded. The growth is shared. A condo worth $300,000 when the relationship started and worth $500,000 at separation gives you a $300,000 exclusion, and the $200,000 of growth goes into the pot that gets divided. The pot that gets divided is called “family property.” 

Excluded property also has to be traceable. "I am sure I put about forty grand in somewhere around 2016" does not carry the day. Bank statements, the deposit trail, the conveyancing documents, and the gift or inheritance paperwork do. If you have that paper, find it now, because it gets harder to retrieve every year.

The four ways a house usually lands

Once you know roughly what the equity is and how it splits, the house itself goes one of four ways.

None of these requires a judge. All of them can be reached through negotiation, mediation or the collaborative process, and written into a final separation agreement.

The mortgage is the part people forget

An agreement that one spouse keeps the house means very little until a lender agrees. Most buyouts require the remaining spouse to refinance in their own name alone, which means qualifying on their own income under current rates and stress-test rules.

Three practical points save a lot of heartache here:

• Get pre-qualified before you commit to keeping the home. Find out what you can carry alone before it becomes a promise in a signed agreement.
• Being taken off title does not remove you from the mortgage. Those are two separate pieces of paperwork with two different institutions. Until the lender releases you, a missed payment is still your credit problem.
• Build a backup into the agreement. If refinancing is not approved by a set date, the agreement should say what happens next, usually that the home gets listed. Without that clause you are back at the start, several months later and more tired.

Ask your lawyer and your accountant about tax before you sign as well. A transfer of a home between spouses as part of a separation may qualify for relief from property transfer tax, and the tax treatment of the home you keep can differ from a rental or recreational property. These are answerable questions, and they are considerably cheaper to answer in advance.

When equal is not fair

The equal split is a presumption, not a guarantee. A court can divide family property unequally where an equal division would be significantly unfair. The bar is deliberately high, and "significantly" is doing real work in that sentence.

Factors that can move a court include the length of the relationship, one spouse’s contribution to the other’s career or property, whether one spouse took on debt for the family’s benefit, and how much the home has grown in value relative to a short relationship. A three-year marriage where one spouse arrived with a nearly paid-off house is a different conversation than a twenty-five year marriage where the house was built together.

Most of these arguments settle. They are worth understanding, because they set the range you are negotiating inside.

Who lives there while you sort it out

Ownership and occupation are two separate questions, and the second one is usually more urgent.

Where continuing to share the home has become a practical impossibility, either spouse can ask the court for a temporary order of exclusive occupancy of the family residence. The court looks at practicality and at the needs of the children, not at who holds title and not at who is more at fault for the separation.

Where there is family violence, this moves faster and sits alongside protection orders. Nobody should be waiting out a property negotiation in a home where they are not safe.

Short of a court order, many families reach a written interim arrangement covering who stays, who pays what, and for how long. It is not the fun part of the conversation, and it prevents months of arguments about the hydro bill.

Protecting the house while you negotiate

If you are worried the home could be sold, remortgaged or stripped of equity before your claim is dealt with, there are tools:

• A certificate of pending litigation. Once a Supreme Court proceeding about property division has started, a CPL can be registered on title. It sits there as a charge and effectively stops a sale or refinance from completing without dealing with you first.
• Orders restraining disposition. A court can order that property not be sold, transferred or borrowed against while the matter is resolved.
• The Land (Spouse Protection) Act. Married spouses can file an entry against the title of a home that protects against it being sold or mortgaged without consent. It has to be filed to do anything, and most people have never heard of it.

These are protective, not aggressive, and using one does not mean you are heading to trial. It means the asset stays where it is while the adults work out what happens to it.

What we see go wrong

• Deciding to keep the house on emotion, then discovering the mortgage math. Run the numbers before the decision hardens into a position.
• Using an assessed value instead of a market appraisal. A BC Assessment notice is a tax document, not a valuation, and the gap between the two can be enormous.
• Valuing at the wrong date. Family property is generally valued at the date of agreement or hearing rather than the date of separation, which matters a great deal in a moving market.
• Handshake deals about the house. An oral agreement about a property worth several hundred thousand dollars is not a plan. Put it in a final separation agreement.
• Waiting. Delay costs limitation rights, negotiating leverage, and sometimes the house itself.

How we approach the house

We start with three numbers: what the home is worth, what is owed against it, and what either of you can trace as excluded property. Most of the fear around the house dissolves once those three numbers are on a page.

From there we work toward a final separation agreement through negotiation, mediation or the collaborative process. Where mediation is the route, we recommend you bring your lawyer with you. Court remains available for the matters that genuinely need it, and it runs many months, and sometimes years, which is why we treat it as a last resort rather than a first move.

We work with families from our Victoria, Nanaimo, Vancouver and Surrey offices, and by video across British Columbia.

• Waiting. Delay costs limitation rights, negotiating leverage, and sometimes the house itself.

Where to go next

• Property and money in BC (/Property-and-Money.html): the full picture on dividing property, debt and pensions.
• Division of property in divorce (/division-of-property-in-divorce.html): how family property and excluded property work together.
• Common-law couples in BC (/common-law-agreement.html): why two years changes everything about the house.
• Separation agreements (/legal-separation.html): getting the house terms written down properly.
• Child and spousal support (/support.html): how support and the house decision affect each other.
• Mediation and collaborative family law (/divorce-mediation-lawyers.html, /collaborative-family-law.html): the two routes most home decisions settle through.