What Happens to the Family Home in a Divorce?
For most couples, the family home is more than an asset. It’s a place full of memories, stability, and emotion. It’s also, in most cases, the most valuable property in the relationship. So, what actually happens to the home when you separate or divorce in British Columbia? Who gets to stay, who gets paid out, and what if you can’t agree?
Here’s how it works under BC’s Family Law Act, and what to expect when one person wants to keep the home while the other wants to sell.
Step 1: Identifying Whether It’s “Family Property”
Under BC law, the starting point is simple: each spouse is entitled to an equal share of family property and responsible for an equal share of family debt.
“Family property” includes any property owned by either spouse at separation, with few exceptions. If the home was ordinarily used by either spouse or a child for a family purpose, it’s considered family property – even if it’s only in one person’s name.
That means even if one spouse bought the home before the marriage and kept the title in their name, the other may still have a claim to share in its increase in value during the relationship.
Step 2: Understanding “Excluded Property”
Not all property is split equally. If one spouse owned the home before the relationship, the value at the start of the relationship is usually “excluded property.” That spouse will typically keep that amount.
However, any increase in value from that point forward is generally family property and subject to equal division. So, if a house was worth $500,000 when the couple moved in and $900,000 at separation, the $400,000 growth would be divided equally.
Step 3: Who Gets to Stay in the Home?
During separation, one of the most practical questions is: who stays in the home while things are being sorted out?
If the home is jointly owned, neither spouse has an automatic right to exclude the other without a court order or agreement. If there are children involved, the court’s main concern will be stability, particularly keeping the kids in their familiar environment if possible.
Sometimes, spouses agree that one person will stay temporarily, especially if it makes sense for parenting or financial reasons. But it’s important to understand that temporary possession does not determine final ownership. It’s a short-term solution, not a final division of property.
Step 4: When One Spouse Wants to Sell and the Other Wants to Keep It
This is one of the most common (and emotional) disputes in family law.
If one spouse wants to keep the home, they can usually buy out the other’s share, often by refinancing the mortgage or using other assets to offset the value. For example, one spouse might keep the house while the other keeps more investments or pension funds.
If neither party can afford to buy the other out, or if both want to sell, the court can order the property listed for sale and the proceeds divided.
On the other hand, if one person wants to sell but the other refuses, the court can also order a sale – even over the objection of one spouse – if it’s the only fair way to divide the asset.
Step 5: Valuing the Family Home
Valuation is key. The home’s value is usually determined as of the date of trial or settlement, not the date of separation.
That date matters, especially in BC’s housing market. If property values have risen (or fallen) significantly, the difference can be substantial. Formal appraisals or realtor market opinions are often used to get an accurate value before any buyout or sale.
Step 6: What About the Mortgage?
If both spouses are on the mortgage, they remain jointly liable until it’s paid out, refinanced, or the property is sold.
That means if one spouse stays in the home and stops paying, the other’s credit could still suffer. It’s crucial to document in writing who’s responsible for payments during separation, ideally within a separation agreement or interim court order.
Step 7: The Role of Agreements and Court Orders
In many cases, separating couples can reach an agreement about the home – through negotiation, mediation, or other similar mechanisms. But, if no agreement is possible, the BC Supreme Court has the power to decide. It can order exclusive possession of the home for one spouse (especially if children are involved), that the home be listed for sale, or that one spouse buy out the other’s interest within a set timeframe (or all of the above!).
The court’s main goal is to achieve fairness and practicality, not to punish one side or reward the other.
Bottom Line
The family home often carries more emotional weight than any other asset, which makes it one of the hardest issues to resolve in a separation. But under BC’s Family Law Act, the principles are clear: fairness, equal division of family property, and recognition of excluded property where applicable.
If you’re separating, get advice early! Especially if you want to stay in the home or if you believe you should be compensated for a larger contribution. The cost of doing it right is almost always less than the cost of fighting about it later.
Book a consultation to discuss your options and understand your rights before making any major decisions about the family home.