If you are separating from a spouse, one of the most important practical and financial questions may be what happens to the family home.
For many families in British Columbia, the family home is not only a major asset, but also the centre of day-to-day life. It may be where the children live, where equity has been built, and where a significant portion of the family’s finances are tied up.
In recent years, higher borrowing costs, mortgage renewals, debt obligations, and the rising cost of maintaining two households have made this issue more difficult for many separating couples. A home that was manageable on two incomes may be difficult to carry on one.
As a result, the question is not always who wants to keep the home. In many cases, the harder question is what each spouse can realistically afford.
This article explains common options after separation, including buyouts, refinancing, court-ordered sales, and exclusive occupation of the family home.
THE FAMILY HOME UNDER THE FAMILY LAW ACT
In this article, “family home” refers generally to a residence the spouses lived in during their relationship. Depending on the circumstances, this may include a primary residence, a secondary residence, or another property owned by one or both spouses. Whether a particular property is treated as family property under the Family Law Act depends on the facts and, if spouses cannot agree, may need to be decided by the court.
Under the Family Law Act, spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution. Each spouse is generally entitled to share equally in family property, unless an agreement or court order says otherwise.
A common misconception is that the person named on title automatically keeps the home. That is not necessarily the case. Even if one spouse purchased the home before the relationship or contributed more financially, the analysis may still involve family property, excluded property, increases in value, family debt, and unequal contributions.
Excluded property may include property acquired before the relationship, inheritances, and gifts from third parties. However, any increase in the value of excluded property during the relationship may still be family property. The spouse claiming excluded property must also be able to prove that claim.
KEEPING THE FAMILY HOME: BUYOUTS, REFINANCING, AND CARRYING COSTS
In some cases, one spouse may want to keep the family home through a buyout. A buyout usually involves one spouse compensating the other for their share of the equity while refinancing the property into one name.
While this can be a practical option, it is not always possible. After separation, refinancing may be affected by income, mortgage qualification requirements, child support or spousal support obligations, existing debt, reduced borrowing capacity, changes in property value, and ongoing carrying costs. These factors can determine whether a buyout is realistic or whether another option needs to be considered.
Timing can also become an issue. One spouse may want to delay a sale to keep children in the home, avoid selling in an uncertain market, or allow time to explore refinancing. The other may need access to equity, relief from mortgage payments, or clarity about next steps.
Delay can have consequences. Mortgage payments, property taxes, insurance, strata fees, repairs, and other costs may continue to add up, especially where there has been a job loss, reduced income, increased debt, or a decline in equity.
These ongoing costs may also become part of the discussion about family debt, particularly where one spouse remains in the home or the sale is delayed.
WHAT IF SPOUSES CANNOT AGREE?
When spouses cannot agree, the next step often depends on the information available and how urgent the issue has become. Some disputes can still be resolved through negotiation, mediation, a buyout, or a separation agreement.
Before making any decisions, both spouses should have a clear picture of the property value, mortgage obligations, carrying costs, and whether refinancing is realistic. Without that information, it can be difficult to know whether the home can be kept, sold, or occupied by one spouse temporarily.
Court involvement may become necessary where agreement is not possible, delay is creating financial pressure, or there is a dispute about who should remain in the home.
COURT ORDERED SALE OF THE FAMILY HOME
Where separated spouses cannot agree on what should happen to the property, the court may be asked to decide whether the family home should be sold.
Under Rule 15-8 of the Supreme Court Family Rules, the court may order the sale of property in a family law case where it is appropriate in the circumstances. If an order for sale is made, the court may also give directions about how the sale will take place.
These disputes often come up where refinancing is not possible, mortgage payments have become difficult to manage, or one spouse needs access to their share of the equity. However, a court-ordered sale is not automatic. The court may consider financial circumstances, available housing, parenting issues, and whether keeping the home is creating more debt or delay.
EXCLUSIVE OCCUPATION OF THE FAMILY HOME
Another issue that may come up after separation is whether one spouse should have exclusive occupation of the family residence for a period of time.
Under s. 90 of the Family Law Act, the Supreme Court may grant one spouse exclusive occupation of the family residence for a specified period. This type of order deals with who can live in the home. It does not decide ownership or give that spouse a property interest in the home.
These applications often come up where continued cohabitation is no longer workable, especially where children remain in the residence or conflict has escalated. When considering exclusive occupation, the court may look at the best interests of the children, each spouse’s financial position, caregiving responsibilities, and which arrangement is more workable in the short term.
KEY TAKEAWAYS
The family home is rarely just a property issue. After separation, it is often tied to affordability, parenting stability, support obligations, debt, and long-term financial planning. The central question is not always who wants the home, but whether keeping it, delaying a sale, or selling it makes sense in the circumstances.
The lawyers at Cote & Evans Trial Lawyers can assist with issues involving family property, family debt, exclusive occupation, and disputes over the sale of the family home. If you are separating and have questions about what may happen to your home, we encourage you to contact our office to speak with a lawyer.
Jashan Chauhan
Jashan earned his Juris Doctor from Thompson Rivers University (TRU). During his time at TRU, he served as President of the TRU Mental Health and Law Club in his second year and as President of the South Asian Law Students Association in his third year. In these roles, he focused on peer support, community building, and promoting cultural diversity.