I Owned My Home Before We Met: What Happens to It When We Separate?

You bought your condo or house on your own. Then you met someone, they moved in, and perhaps you married. Now the relationship is ending, and you want to know whether your partner can claim half of the home.

Usually not half of the whole home, but often a share of what it gained during the relationship. Here is how BC's Family Law Act draws that line, and the details that change the numbers.

When did your relationship begin? It may be earlier than the wedding

Under BC's Family Law Act, property you owned before the relationship began is excluded from family property. For property division, the relationship begins on the earlier of two dates: the day you started living together in a marriage-like relationship, or the day you married.

That matters if you lived together first. Example only: you bought a condo in 2016, your partner moved in in 2018, and you married in 2021. The relationship began in 2018, so the condo was yours before the relationship. If you had bought it in 2019, after moving in together, it would not be pre-relationship property, although the down payment might still be excluded if you can trace it to savings you had before 2018.

If you never married, these rules apply only if you lived together in a marriage-like relationship for at least two years. Our article on separation for couples who lived together explains that threshold.

What stays yours and what is shared

A home you owned before the relationship is excluded property. But the Act makes the increase in value of excluded property during the relationship family property, and family property is shared equally unless an agreement or court order says otherwise. Our general guide to dividing family property in BC explains that starting point.

Example only, ignoring the mortgage for now: your house was worth $700,000 when the relationship began and is worth $1,000,000 when you divide property. If you can prove the starting value, the $700,000 is excluded and the $300,000 increase is family property, so each of you is generally entitled to half of that increase.

Two practical points follow:

• You carry the burden. The spouse who claims an exclusion must prove it, including what the home was worth when the relationship began. That usually means a retrospective appraisal, plus your purchase and mortgage records.
• The current value is set late. Family property is generally valued at fair market value as of the date of your agreement or the court hearing, not the date you separated. A market that rises or falls while you negotiate changes the shared amount.

The mortgage, renovations and refinancing

If there is a mortgage, that is where the arithmetic gets harder.

• Mortgage paydown. Payments made during the relationship, often from both partners' income, build equity. How that equity and the mortgage balance at the start of the relationship are handled in the calculation depends on the facts, so get advice before you exchange figures.
• Renovations. Improvements made during the relationship generally show up in the increase in value, which is shared anyway. If your partner put their own money or work into the home, that can also matter if they ask the court to divide excluded property, discussed below.
• Refinancing and lines of credit. Debt taken on during the relationship is generally family debt, which both spouses are responsible for equally. A line of credit secured on your home and used for family expenses can be a shared obligation even though the home was yours.

Selling, moving or adding your partner to title

Many people sell the home they owned before the relationship and buy a new family home together. The new home is not automatically family property in full. Property derived from excluded property can also be excluded, so the equity you carried over may stay excluded if you can trace it from the sale to the purchase. The rest of the new home, and its growth in value, is family property.

Putting your partner on title does not by itself end the exclusion either. Under the current Act, excluded property stays excluded even when ownership passes from one spouse to the other, and the old legal presumptions about gifts between spouses no longer apply. But the terms of any agreement about the transfer can matter if the court is asked to divide excluded property, so read what you sign when title changes.

If you are the partner who does not own the home

You may have no claim to the value the home had when the relationship began, but you will generally share in its growth during the relationship. You also have some protection while property issues are being sorted out:

• Exclusive occupancy. The Supreme Court can give one spouse exclusive occupation of the family residence for a set period, whoever owns it. The order does not give an ownership interest.
• A title entry. If the home is registered only in your spouse's name and you lived there together, the Land (Spouse Protection) Act lets you apply for an entry on the title. After that, a sale or other disposition by the owner without your written consent is void unless a court dispenses with consent.
• Fairness limits. A court may divide family property unequally where an equal division would be significantly unfair. In narrower cases it may divide excluded property, looking at the length of the relationship and factors such as your direct contribution to preserving, maintaining or improving the home.

Our guide to the family home after separation covers who stays, selling and buy-outs in more detail.

Deadlines, and protecting the home in a new relationship

A claim to divide property must generally be started within two years after a divorce order for married spouses, or after separation for unmarried spouses. That clock is paused while you are in family dispute resolution with a family dispute resolution professional.

If you own a home and a partner is moving in, a cohabitation or marriage agreement can record the home's value and set out how it, and any growth, will be treated. The Act lets spouses agree to exclude property or to divide it differently, although a court can set aside an agreement in some circumstances. Our article on what a marriage agreement can and cannot do explains the limits. Either way, keep an appraisal from around the time the relationship begins, together with your purchase documents and mortgage statements.

Owned your home before the relationship? Know your numbers before you negotiate

Our family lawyers can work out which part of your home is excluded and which part is shared, help you gather the valuations and records you need, and prepare or review a cohabitation, marriage or separation agreement.

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