Who Keeps the House After a Common Law Separation in BC?

After a common law separation in British Columbia, neither partner has an automatic right to keep or stay in the house. If you lived together for two years, the home is usually family property divided equally under the Family Law Act, whichever name is on title.

We wrote about what happens to the house in a BC divorce for married couples. Most of that post applies here too, because the Family Law Act uses one property regime for married and unmarried spouses. Three things differ for a common law couple, and SiLaw Group Family Lawyers sees each of them change outcomes: the two-year entry threshold, the absence of any divorce filing, and a claim deadline that runs from separation.

Is the House Family Property If It Is Only in One Name?

Usually, yes. Under section 84(1) of the Family Law Act, family property is all real and personal property owned by at least one spouse on the date the spouses separate. Section 81 of the Act then provides that spouses are both entitled to family property regardless of their respective use or contribution, and that on separation each spouse has a right to an undivided half interest in all family property as a tenant in common. A house registered to one partner alone, bought during the relationship, is divided on the same footing as one in joint names. Our common law property rights page sets out the whole regime.

The requirement is spousal status. For property division, section 3(1)(b)(i) of the Family Law Act requires a continuous period of at least two years of living together in a marriage-like relationship. Having a child together does not substitute for property purposes under section 3(1)(b)(ii) of the Act. A partner who lived in the home for eighteen months and separated has no claim to it under Part 5, and may need to look to the claim the courts developed that our unjust enrichment page describes.

What If One of You Owned the House Before Moving In?

Then part of it is likely excluded. Section 85(1)(a) of the Family Law Act excludes from family property the property a spouse acquired before the relationship between the spouses began. But section 84(2)(g) of the same Act makes the amount by which excluded property has increased in value since the relationship began part of family property. In plain terms, the owner keeps the value the house had on the day the other partner moved in, and the growth since then is shared.

Two features of section 85 catch people. Under section 85(2) of the Family Law Act, the spouse claiming an exclusion is responsible for demonstrating it, so the value at the start of cohabitation needs evidence, such as an appraisal, assessment or purchase documents from that time. Under section 85(3) of the Act, the exclusion survives a transfer of legal or beneficial ownership from one spouse to the other, so adding your partner to title does not by itself give away the exclusion. Our excluded property guide covers how exclusions are proven and lost, and our family home page covers the service side.

The start date matters here more than anywhere else. Section 3(3) of the Family Law Act fixes the beginning of the relationship at the date the couple began living together in a marriage-like relationship, and that is the date from which growth is measured.

Who Gets to Stay in the House After Separation?

Neither of you has an automatic right to stay, and neither has an automatic right to make the other leave. Both spouses remain entitled to a home they own or lease until an agreement or order says otherwise.

Where the parties cannot agree, section 90 of the Family Law Act allows the Supreme Court of British Columbia to grant one spouse, for a specified period of time, exclusive occupation of the family residence, and possession or use of specified personal property stored there, including to the exclusion of the other spouse. A family residence under section 90(1) of the Act is one owned or leased by one spouse or both that is the spouses' ordinary place of residence, so a rented home is covered. Under section 90(3) of the Act the order does not give the occupying spouse any ownership interest in the home, and under section 90(4) the court may postpone the other spouse's right to apply for partition and sale while the order runs.

These orders decide who lives in the house now, not who ends up with it.