What Happens to The Family Home During a Divorce? - Zukerman Law

What Happens to The Family Home During a Divorce?

The family home serves as more than just a physical structure; it represents a shared history, financial investment, and emotional anchor for many couples. Unfortunately, in the event of a divorce, its disposition can become a source of significant stress and legal complexities. This blog post delves into the legalities surrounding the family home in British Columbia divorces. We will explore the factors courts consider when determining the fate of this shared asset, empowering you with valuable information to navigate this challenging aspect of the separation process.

Division of the Family Home

Division of the Family Home

As explored previously, British Columbia’s family law framework adheres to the principle of equalization of net family property. This principle extends to the familial home. Under the Family Law Act, the family home is considered family property regardless of whose name appears on the title deed.

The 50/50 Split: A Starting Point

The equalization principle dictates that family property, including the family home, be divided equally between spouses upon separation. This translates to each spouse holding a 50% interest in the property’s value. It’s important to note that this equal division also applies to family debt, such as any mortgage associated with the home. Both spouses are considered equally responsible for these liabilities.

Exceptions to the Equal Division Rule

However, the “equalization” principle is not absolute. There are certain exceptions to the 50/50 split:

  • Pre-Existing Agreements: If a pre-nuptial agreement or other written agreement exists that outlines property division in the event of separation, this agreement takes precedence over the “equalization” principle.
  • Excluded Property: Certain assets are categorized as “excluded property” and are exempt from the equal division rule. This includes property owned by one spouse before the relationship or inheritances received by one spouse during the relationship. However, it’s important to note that if “excluded property” has been commingled with family property (e.g., using inheritance funds to renovate the family home), the appreciation in value of that excluded property may be subject to equal division.

Reaching an Agreement vs. Court Intervention

Ideally, spouses are able to reach an agreement on the division of the family home through negotiation or mediation. However, if an agreement cannot be reached, the court may be called upon to order an unequal division of the family home’s value.

Can I Get a Court Order to Make My Partner Leave the Family Home?

Can I Get a Court Order to Make My Partner Leave the Family Home?

While the “equalization” principle establishes the foundation for dividing the family home, there may be situations requiring temporary living arrangements during the separation process. British Columbia’s Family Law Act empowers the BC Supreme Court to issue an exclusive occupancy order.

What is an Exclusive Occupancy Order?

An exclusive occupancy order grants one spouse the right to reside in the family home for a specified period while the other spouse is prohibited from living there. This order can be applied to owned property as well as rented property.

Obtaining an Exclusive Occupancy Order

The court will only grant an exclusive occupancy order if the applicant’s spouse can demonstrate two key factors:

  1. Practical Impossibility of Cohabitation: The applicant must establish that continued cohabitation in the same residence is practically impossible. This could be due to intolerable conflict, threats, or abusive behavior.
  2. Balance of Convenience: The court will then weigh the convenience of each spouse. This involves evaluating factors such as:
    • The presence of little children and the impact on their well-being.
    • The financial ability of each spouse to secure alternative housing.
    • Any historical patterns of violence or threats.

Family Violence and Exclusive Occupancy

If there has been family violence or a credible threat of violence exists, the court may prioritize the safety of the victimized spouse and their children. An exclusive occupancy order can be crucial in establishing a haven and creating distance from the abusive partner. The court may also set conditions for contact and communication between the spouses.

Can I lock my partner out?

British Columbia law grants both spouses equal rights of occupancy in the family home until a court decides otherwise or a mutual agreement is reached. Simply wanting your partner to move out is not sufficient legal grounds to exclude them from the residence.
If there is a credible threat of violence, locking your partner out until you can contact the police or obtain a protection order may be a necessary safety measure. However, in situations where violence is not a concern, changing the locks can be seen as an unfair action and potentially strain the negotiation process.

The Bottom Line

The family home is a significant asset in a divorce. While the law provides a starting point for its division, communication and legal guidance are crucial for navigating temporary living arrangements and reaching an agreement on the outcome. Consulting a qualified family lawyer is highly recommended to ensure your rights are protected.
Zukerman Law’s highly experienced family law team in British Columbia can help. We understand the emotional and financial weight associated with marital separation. We are dedicated to guiding you through the legal process with compassion and clarity. Our team will work tirelessly to protect your rights and achieve a fair and amicable resolution regarding the family home, ensuring your future is secure.

author

Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.