Do I have to sell my home as part of the property division process?

FAQs

Do I have to sell my home as part of the property division process?

In a BC divorce, selling the family home as part of property division is not always necessary. While the Family Law Act mandates that family property, including the marital home, be divided equitably, there are various ways to handle this division without requiring a sale. Whether or not the home must be sold depends on factors such as each spouse’s financial situation, agreement, and alternative division options.

Key Points for Dividing the Family Home

  • Equal Division Principle. In BC, the each spouse will generally receive an equal interest in the family home. 50/50 division is subject to any excluded property claims; for example, an excluded property claim would generally exist if one spouse owned the home before the cohabitation or marriage).

Note: Departure from 50/50 division may also be required in cases where family property exists outside of BC and may not be effectively divided by order of a BC court. Even when the parties have an equal interest in the family home, how their interest is divided can vary.

  • Sale is Not Always Required. Alternatives to selling include buyouts, trading assets, or co-ownership agreements.
  • Agreements Between Spouses. If both spouses agree, they can decide to keep or sell the home as part of their property settlement.

Alternatives to Selling the Family Home

  1. Buyout Option. One spouse may buy out the other’s share of the home. This involves paying a fair value, typically determined by a professional appraisal, to retain ownership.

  2. Trade of Assets. If both spouses have significant assets, they may agree to trade. For example, one spouse keeps the home in exchange for other assets, like retirement accounts or investments, to balance the division.

  3. Deferred Sale. Sometimes, a court or agreement may allow for a deferred sale, meaning the home is retained for a set period (e.g., until children reach a certain age), with sale proceeds divided later.

  4. Shared Ownership Agreement. Although less common, some divorcing couples choose to retain joint ownership temporarily, especially if housing costs or market conditions make a sale less feasible. This arrangement often includes a timeline for future sale or buyout.

Factors Influencing Whether to Sell the Family Home

  • Financial Viability. The spouse wishing to keep the home must demonstrate an ability to manage mortgage payments, taxes, and maintenance.
  • Stability for Children. Courts may prioritize keeping children in the home to provide stability during and after the divorce process.
  • Market Conditions. Timing a sale to benefit both parties, especially in a fluctuating real estate market, may be advisable.

Process for Determining the Outcome of the Family Home

  1. Home Appraisal. An appraisal provides a fair market value, essential for buyouts or asset trade agreements.
  2. Negotiation or Mediation. Using negotiation or mediation, couples can often agree on whether to sell the home or pursue alternatives without involving the court.
  3. Court Decision. If spouses cannot reach an agreement, the court will determine the best course of action based on each spouse’s needs and circumstances.

Seek Legal Assistance

Navigating property division and deciding the fate of the family home can be complex. To understand your options and make informed decisions, Mills Family Law, a trusted Vancouver family lawyer, can guide you through the process. Call us at 778-945-3003 or fill out our web form to get started today.

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Relevant Legislation

For further details, refer to the BC Family Law Act, Part 5, which outlines family property and division principles in BC.

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