Added Your Spouse to Title? How Transfers Between Spouses Are Treated After Bill 17

It is common to add a spouse to title after moving in together or getting married, often to a home one of you owned beforehand or paid for with family money. On separation, the question becomes whether that transfer made the property shared.

In 2023, BC amended the Family Law Act to answer that question more clearly. This article explains the new rules on excluded property and on the old legal presumptions, what they mean for the value you brought in, and which cases still follow the earlier law.

The starting point: family property and excluded property

Under BC's Family Law Act, spouses are each entitled to an undivided half interest in family property on separation (section 81). Family property is broadly everything either of you owns at separation, but section 85 excludes certain property, including property a spouse owned before the relationship began, inheritances, and gifts to a spouse from a third party, along with property derived from them.

Two limits matter. First, the increase in value of excluded property since the relationship began (or since it was acquired, if later) is family property (section 84(2)(g)). Second, the spouse claiming an exclusion has to prove it (section 85(2)). Our articles on a home you owned before the relationship and on inheritances and gifts as excluded property explain these rules in more detail.

The problem the 2023 amendments addressed

Before 2023, adding a spouse to title raised a hard question: had the owning spouse made a gift of half the property to the other spouse, so that the excluded value was now shared? Disputes often turned on old common law presumptions about gratuitous transfers, which could point in different directions depending on the facts, and on evidence of what the spouses intended years earlier.

The Family Law Amendment Act, 2023 (Bill 17), which received Royal Assent on May 11, 2023, added two provisions aimed squarely at this situation.

Section 85(3): the exclusion survives a transfer

New section 85(3) says that if property is excluded under section 85(1), the exclusion applies despite any transfer of legal or beneficial ownership of the property from one spouse to the other. In plain terms, putting your spouse on title to the condo you owned before you met, or to a home bought with your inheritance, does not by itself turn the excluded value into family property.

That does not mean nothing is shared. The growth in value during the relationship is still family property, and the transfer itself may have other legal and tax consequences outside family law. It also does not stop the court from dividing excluded property in the limited cases where section 96 allows it, for example where it would be significantly unfair not to, considering the length of the relationship and factors such as the other spouse's direct contribution to maintaining or improving the property.

Section 81.1: no presumptions between spouses

New section 81.1 says the presumption of advancement and the presumption of resulting trust must not be applied to questions about ownership of property between spouses. Instead of starting from a legal assumption about what a transfer meant, the question is decided on the evidence.

This matters most where the dispute is about who owns something, rather than whether it is excluded. Documents created at the time, such as emails, a note to the lawyer who registered the transfer, mortgage applications, or a written agreement, carry more weight than ever.

If you meant to share it, put it in writing

Some people add a spouse to title precisely because they want the property to be shared. The Act lets spouses agree to treat property as family property even if it would otherwise be excluded (section 92). If that is your intention, a written agreement that says so is far more reliable than a title transfer alone. The reverse is also true: if you want to protect the excluded value but are adding your spouse for practical reasons, record that in writing too.

What to gather if you are separating

Because the spouse claiming an exclusion carries the burden of proof, the outcome often depends on paperwork. Useful records include:

• Purchase and title history, including the date you bought the property and the date and form of the transfer to your spouse.
• Proof of where the money came from, such as bank records for a down payment, estate documents for an inheritance, or a gift letter from a parent.
• Mortgage and refinancing records, which show whether excluded value was borrowed against and spent.
• A valuation as of the relationship start, or the information needed to estimate one, so the excluded amount and the later growth can be separated.

Which cases follow the old rules

Bill 17 included a transition rule. Unless the spouses agree otherwise, section 81.1 does not apply, and the earlier versions of sections 85 and 96 continue to apply, to a property division proceeding started before May 11, 2023, or to a proceeding to set aside or replace a property agreement made before that date. Proceedings outside those categories are generally decided under the current provisions, even if the transfer to your spouse happened years earlier.

Unmarried partners who qualify as spouses under the Family Law Act are covered by the same property rules; see our article on the two-year rule for common-law separation.

Separating after adding your spouse to title?

Our family lawyers can review how and when the property was acquired and transferred, trace the excluded value, and advise you on negotiating or applying for a fair division under the rules that apply to your case.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.