If you’re going through a divorce, you already have a lot on your mind: the end of your relationship, the potential loss of income, and parenting arrangements if you have children.

But one of the most pressing concerns of many separating couples is where you will live. Who has the right to the family home? In this post, an experienced British Columbia divorce lawyer covers what you need to know about who keeps the house after a divorce.

Family Property vs. Excluded Property

British Columbia marriage dissolution lawyers explain that both spouses are generally entitled to half of all “family property.” But what exactly constitutes family property?

Family Property

Unless specifically excluded, property owned by one or both spouses at the time of separation is family property. Family property also refers to any property acquired by one or both spouses after separation if they used family property to acquire it. It does not matter whether the property is in one or both names. 

Excluded Property

Excluded property is generally exempt from the rule that you must divide property equally in a divorce. Examples of excluded property include inheritances, gifts to one spouse from a third party, and property one spouse owned before cohabitation.

In most cases, courts will divide family property equally and not divide excluded property at all. One exception is if the court determines that doing so would be significantly unfair. 

Increase in Property Value

According to these rules, courts presume houses bought before cohabitation to be excluded property. That means you are potentially entitled to keep the house or condo in a divorce if you owned it before your spouse moved in. If your spouse owned the home before you moved in, they would generally be entitled to it.

However, it can sometimes be complicated. For example, both spouses are entitled to half of the increase in property value.

For example, perhaps you owned a house having equity of 250,000 dollars when your partner moved in. You lived together, paid the mortgage, and did renovations during the marriage. If the house was worth 450,000 dollars when your spouse moved out, your spouse would likely be entitled to half of the 200,000 dollars increase in equity. 

Who Keeps the House in a British Columbia Divorce?

While some cases are relatively straightforward, knowing how to divide property can be challenging. It’s best to seek legal counsel for divorce in British Columbia before making any decisions about staying in the family home, leaving the family home, or dividing assets during a separation. 

Below are some examples of the complications that British Columbia divorce lawyers often see:

  • Ownership vs. occupancy: Who owns the home is different from who is allowed to live there during a separation. Neither spouse necessarily has to move out unless a court order requires them to do so.
  • Legal marriage vs. common-law marriage: These rules of dividing assets apply to legally married couples and those who have been living together in a marriage-like relationship for at least two years.
  • Relationship agreements: If you and your spouse created an agreement before your relationship or reach an agreement after separation, you may be able to divide your property and debt unequally per your agreement.
  • Commingled assets: If one of the spouses sold excluded property and then used that money to buy joint property, they may lose their exclusion depending on the circumstances.

If you have questions about your legal rights to a home or are seeking experienced divorce counsel in British Columbia, Pier Law & Mediation can help. Pier Law & Mediation is a family law firm and mediation center where clients feel valued, well informed, and properly represented. Call (604) 560-8285 for a consultation with an experienced British Columbia divorce lawyer.

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