What Happens to the House in a BC Divorce?
By SiLaw Group Family Lawyers · Published Sep 27, 2026 · 6 min read
Author: SiLaw Group Family Lawyers
Published: Sep 27, 2026
In most BC divorces, one of three things happens to the house: one spouse buys out the other, the home is sold and the proceeds are divided, or the couple agrees to keep it for a time. The starting point in law is that each spouse is entitled to half of the family home's value.
That starting point comes with important exceptions, and with rules about who can live in the home and who can sell it while the divorce is being worked out. Here is how it fits together.
Is the house family property even if it is in one spouse's name?
Usually, yes. Section 84(1) of the Family Law Act defines family property as all real and personal property owned by at least one spouse on the date the spouses separate. Title does not decide the question. If either of you owns the home when you separate, it is family property unless an exclusion applies.
Section 81 sets the ground rule for dividing it. Subject to an agreement or order that provides otherwise, spouses are both entitled to family property regardless of their respective use or contribution, and on separation each spouse has a right to an undivided half interest in all family property. In plain terms, separation itself gives each spouse a presumptive half interest in the home, even a home registered in one name only.
These rules apply to married spouses and to unmarried partners who have lived in a marriage-like relationship for at least two continuous years, under section 3 of the Family Law Act. Our property division page covers how the framework applies to the rest of your assets.
What if you owned the home before the relationship?
This is where BC's excluded property rules come in, and houses are where they matter most.
Under section 85(1)(a) of the Family Law Act, property a spouse acquired before the relationship began is excluded from family property. Other exclusions include inheritances (section 85(1)(b)) and gifts to one spouse from a third party (section 85(1)(b.1)).
But the exclusion has a critical limit. Under section 84(2)(g), the amount by which the value of excluded property has increased since the relationship began, or since the property was acquired if that came later, is family property. So if you brought the home into the relationship, the value it had at that point can stay yours, while the growth in its value after that is presumptively shared between you.
Picture one spouse who owned a condo before the relationship began. The condo's value on the day the relationship started is the excluded portion. Everything the condo gained in value from that day forward is family property, and both spouses presumptively share it.
Two practical points follow. First, section 85(2) puts the burden on the spouse claiming an exclusion to demonstrate it. That means records: purchase documents, assessments, mortgage statements from the start of the relationship. Gather them early, because old records disappear. Second, section 85(1)(g) extends the exclusion to property derived from excluded property. That is how an exclusion can follow sale proceeds from one house into the next, but proving that chain is your job, and the tracing can get messy fast.
We break these rules down further in our guide to excluded property in BC.
Who gets to stay in the house after separation?
Nothing in the Family Law Act forces either spouse to move out at separation. You can even be legally separated while still living in the same residence, under section 3(4).
When sharing the house is no longer workable, the BC Supreme Court can decide who stays on a temporary basis. Under section 90 of the Family Law Act, the court may grant one spouse exclusive occupation of the family residence for a specified period. A family residence, for this purpose, is a residence that is owned or leased by one or both spouses and is their ordinary place of residence.
A section 90 order has a few defined features:
- It is temporary, granted for a specified period.
- It can also cover possession or use of personal property stored at the residence.
- It does not give the occupying spouse ownership. Section 90(3) says the order does not grant a proprietary interest in the residence.
- The court can postpone the other spouse's right to seek partition and sale of the home while the order is in effect, under section 90(4).
Moving out does not mean giving up your share of the house. Occupation and ownership are separate questions, and a spouse who leaves for the sake of peace keeps every property right they had.
Can your spouse sell or mortgage the home without you?
If you are both on title, a sale or a new mortgage generally requires both of you.
If the home is in your spouse's name alone, the Family Law Act protects your claim. Under section 91, on application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue, unless that spouse establishes the claim will not be defeated or harmed by the disposal. The word in the statute is must, not may. Married spouses may also be able to file an entry against the home under the Land (Spouse Protection) Act, an option section 90(5) of the Family Law Act expressly preserves.
If you are worried the house might be sold, refinanced or stripped of equity, raise it with a lawyer immediately. These protections work far better before a transfer than after one.
How do couples choose between a buyout and a sale?
Start with value. Under section 87 of the Family Law Act, family property is valued at its fair market value, and the value is determined as of the date of the agreement or the court hearing, not the date of separation. In a moving market, that timing rule matters: gains or losses after separation generally land in the pot that gets divided. An appraisal, rather than a guess or an old assessment, is usually money well spent.
A buyout tends to make sense when one spouse can qualify to refinance alone, when children are settled in the home and a move would be disruptive, or when there are other assets, often a pension, that can offset the departing spouse's share. The buying spouse should confirm financing before committing, because a buyout that cannot be funded collapses the whole settlement.
A sale tends to make sense when neither spouse can carry the home alone, when both need the equity to rehouse, or when neither wants the ongoing tie to the other that a delayed arrangement creates. A sale also sets the value definitively, which ends arguments about what the house is really worth.
Some couples agree to keep the home jointly for a defined period, for example until a child finishes a school year. That can work, but only with clear written terms about who pays what, who lives where, and exactly when and how the home will be sold or bought out.
What if you cannot agree?
Most house disputes settle through negotiation or mediation. If yours does not, the Supreme Court can divide family property under Part 5 of the Family Law Act, and the home is dealt with as part of that division.
Watch the clock. Under section 198(2) of the Family Law Act, a spouse who was married must start a property division proceeding no later than two years after the divorce judgment or an order of nullity, and a spouse from a marriage-like relationship must start it no later than two years after separation. Under section 198(5), the clock is paused while the spouses are engaged in family dispute resolution with a family dispute resolution professional.
Where to get advice
The house usually carries the most money and the most emotion in a divorce, and early decisions about it are hard to unwind. SiLaw Group Family Lawyers acts for homeowners across Surrey and the Lower Mainland in exactly these disputes, from exclusive occupation applications to buyout negotiations. If you are separating and the home is in play, our Surrey divorce lawyers can help you protect your position before anything is listed, transferred or signed. SiLaw Group offers consultations for both married and unmarried spouses.
About SiLaw Group
SiLaw Group Family Lawyers is a Surrey, BC firm practising family law and mediation. Founder Sandy Sihota is an accredited Family Law Mediator, Arbitrator and Parenting Coordinator (Law Society of BC). Articles are legal information, not legal advice.