The family home raises the most urgent practical questions at separation - who stays? Can one spouse buy out the other? When must it be sold? Here's a clear guide to BC's rules on the family home.
Under BC's Family Law Act (FLA), the family home is family property subject to equal division between spouses — even if only one spouse's name appears on the title. This surprises many people. The legal rule is that property acquired by either spouse during the relationship is presumed to be family property and divided equally, regardless of who paid for it or whose name it is registered in.
What Is the "Family Home" Under the FLA?
The FLA defines the family home — sometimes called the "family residence" — as the property that was ordinarily occupied by both spouses as their primary family residence immediately before separation. This is a factual test: courts look at where the family actually lived, not what the title says or what the spouses intended.
If the couple owned a cottage or secondary property as well, that property is also family property subject to division — but it does not attract the same special rules about interim possession and occupation that apply to the primary family home.
The Starting Point: Equal Division
The default rule under Part 5 of the FLA is that family property is divided equally. Courts can depart from equal division only if equal division would be "significantly unfair" — a high threshold that is not easily met. This means that in most separations, both spouses are entitled to 50 percent of the net equity in the family home, calculated after deducting the mortgage, property transfer costs, and real estate commissions if the property is sold.
Excluded Property: Can One Spouse Keep Their Pre-Relationship Equity?
Under s. 85 of the FLA, property that a spouse owned before the relationship began is "excluded property" — it does not become family property. However, the rule works differently for the family home than for other assets:
- The original equity that a spouse brought into the relationship (for example, the down payment they paid from savings accumulated before the relationship) may be excluded.
- The increase in value of the home during the relationship is almost always family property, even if the home was owned by only one spouse before the relationship.
- If the excluded down payment is commingled with family funds over many years of mortgage payments made from joint income, tracing the excluded amount can be very difficult — and the burden of proof is on the spouse claiming the exclusion.
Who Gets to Stay in the Home?
Separation does not automatically determine who stays in the family home. Both spouses have the right to occupy it, regardless of whose name is on the title, unless a court order provides otherwise. Under Part 7 of the FLA, a spouse can apply for an exclusive occupancy order — a court order granting one spouse the right to remain in the home and excluding the other. These orders are commonly made when:
- Children are living in the home and the primary caregiver needs stable housing for them
- There is a history of family violence or coercive behaviour
- The practical circumstances (two people under the same roof after separation) are creating serious conflict
An exclusive occupancy order is an interim measure — it does not determine who ultimately receives the home. It simply manages who lives there while the property division is being resolved.
Important: Do Not Leave Voluntarily Without Legal Advice
Many people make the mistake of moving out of the family home without legal advice, assuming that their rights follow them regardless. While this is generally true — your property rights exist whether you are living in the home or not — voluntarily vacating can affect your practical ability to protect your interests in the interim. Get legal advice before you move out.
Options for Final Resolution
When the time comes for a final settlement, the family home must be dealt with in one of three ways:
1. Buyout: One spouse retains the home by paying the other their share of the equity. This is typically done through refinancing. The lender must be satisfied that the spouse retaining the home qualifies for the mortgage alone, or with a new co-borrower.
2. Sale: Both spouses agree to sell (or a court orders a sale), and the net proceeds are divided in accordance with the settlement agreement or court order. The court has broad power to order a sale, including setting a listing price and timeline.
3. Deferred sale: In some circumstances — most often where children are in school — the court may order that the family home not be sold immediately, but maintained for a defined period (for example, until the youngest child finishes high school). This is called a deferred sale order, and it comes with conditions about who maintains the mortgage, insurance, and property taxes in the interim.
Mortgage Debt and Joint Liability
Both spouses remain legally responsible for the mortgage until it is refinanced in one name or the property is sold. The lender is not bound by any separation agreement or court order between the spouses. If the spouse who stays in the home stops paying the mortgage, both spouses' credit will be affected, and the lender can pursue both.
This is why a clean resolution — either a buyout with refinancing or a sale — is usually preferable to leaving both names on title and the mortgage for an extended period.
Protecting Your Interest: Certificate of Pending Litigation
If you are concerned that your spouse might try to sell or mortgage the family home without your consent while the dispute is ongoing, you can file a Certificate of Pending Litigation (CPL) at the BC Land Title Office. A CPL registers your claim against the property and prevents any dealings with the title — including sale or mortgage — without your knowledge.
Sea to Sky Law™ advises separating spouses throughout BC on all aspects of family home division — from interim possession to final buyout, deferred sale agreements, CPL applications, and court orders. Contact Andrew Liggett BA JD CD for practical, experienced guidance that protects your most important asset.