Sale of the Family Home | BC Family Law | Family Lawyers BC

The sale of the family home in BC is an important area of family law that hasn’t been explored as much as it needs to. You may want to sell your family home:

• At the time of separation; 
• After separation but before your BC family law trial; 
• After trial. 

Let’s look at what is good timing for the sale of the family home in your case:

Sale of the Family Home – At the Time of Separation

The sale of the family home at the time of separation is good for spouses who:

• Don’t have children together;
• Neither one can afford the mortgage;
• Neither one wants to live in the family home.

At the time of separation, you need the other person’s consent to sell the family home. Even if the house is under one person’s name, that person can’t sell it without your consent because now you have an interest in the home. If they list it for sale without your consent, you can stop the sale through the court process which will be explained below.  It is however always best to come to an agreement on:

• Who will pay the mortgage until the home is sold;
• Who will be the realtor; and
• How the sale proceeds will be divided.

If you can’t decide on how to divide the sale proceeds, you can leave those proceeds in the trust account of your notary until you and your spouse reach an agreement.

How to Sell the Family Home?

To sell the family home, one spouse starts a family law claim through a Notice of Family Claim and then sets down an Application for the home to be sold. In order to get an Order for the sale of the family home, you need to prove the following:

1. The sale is necessary – this means neither you nor your spouse can afford the mortgage payments or other expenses on the home pending trial.
2. the sale of the family home is expedient – in other words, it will promote an early settlement of your case. This means if the home is sold, it is easier to divide the sale proceeds than to not have it sold and fight over its value and how much each of you will get out of it.

In many cases, after separation one spouse stays at the family home and the other spouse either leaves or is forced to leave. Usually, the spouse who stays at the family home stays there with the kids or has the family home under his or her own name.

The spouse who leaves the family home may not have enough money to pay for half of its mortgage or may need to have it sold so he/she can use some of the sale proceeds to buy a home for him/herself.

The family home does not automatically get divided 50/50. You or your spouse can make excluded asset claims and obtain more or less than 50% of the net sale proceeds.

Sale of the Family Home After Family Law Trial

If from the time the Notice of Family Claim is filed until trial, you or your spouse have an agreement or are able to keep the family home. At the time of trial, you will have two choice:

1. Either agree on the value of the family home and buy out the other spouse’s interest in the home (or sell yours); or
2. List the home for sale, sell it and divide the net sale proceeds based on what the judge says you each are entitled to.

But be aware of the following arguments you can make at the time of trial:

• If after separation, only you (or your spouse) contribute to the mortgage and expenses of the family home, you can ask the judge to have your spouse pay back half of all the contributions;
• If the value of the home went up between separation and trial, you can ask the judge to let you keep the increase in value if you contributed fully to the home and your spouse did not;
• You can ask the judge to make a 50/50 order regardless of who contributed to the home after separation.

To know which one of the arguments will win for your case, you will need to speak with a BC Family Lawyer to find out what factors will help you. And which factors will not help your case. To find out more, contact one of our award-winning family lawyers at 604-974-9529 or get in touch.