Divorce, particularly the acrimonious, contested kind, can lead to disagreements about Family Property. The matrimonial home, in most cases, is by far the largest asset which separating couples own.
In this blog we discuss how divorce can affect your home and property, and address the question: “Can someone force you to sell your house even if you don’t want to?”
Home not forced into Sale
If you and your spouse are in agreement with respect to whether or not to sell your home, you have the following options:
- The value of the property is agreed to, and one spouse sells their interest in the property to the other. The spouse who buys the interest of the other spouse becomes the sole owner.
- The property is sold to a third party. The net proceeds of sale are divided between the spouses by Agreement, or by Court Order if they cannot agree as to the percentage split.
With real estate, the challenge may arise that if the home is not forced into sale, one or both of the spouses may experience a significant portion of their net worth locked into this property.
Further, a property that is locked in a legal battle may increase or decrease in value, complicating the valuation process and a fair division.
Another thing to keep in mind is that mortgage agreements signed together with your spouse may have separation clauses that you might not have read prior to signing. You may be prevented from buying a new house, as technically a debt is owed by both you and your spouse.
Can the Court force the sale of your home?
There are circumstances where the Court has the power to order the sale of your home. In British Columbia, this may be done using the Partition Property Act.
In these situations, the Court’s role is to objectively evaluate the interests of both parties.
The Court may also order the sale of a property if it is established that not selling the home could negatively affect one person financially. In the 2012 case of Borg v. Morris, one party did not wish to sell the home and the Court found that, based on the evidence, not selling the home would negatively impact one party more than the other. The Court ordered the home be put on the market and the parties were given joint conduct of sale.
When there is a forced sale of the home, deciding who “moves out” can depend on several factors, including:
- Who (if anyone) can afford to keep the property by themselves
- The safety and education of any children
- If violence and/or abuse are reasons for the divorce.
Interim Distribution of Assets
BC Supreme Court has the jurisdiction to order what is known as “Interim Distribution of Assets”.
“Interim Distribution of Assets” may occur in situations where a couple’s assets are tied up prior to trial when each person has a default equal entitlement to the gain on excluded property and the equity of family property.
Jointly Owned vs. Separately Owned
Things brought into the relationship that is for the benefit of the family or the couple is generally deemed to be “jointly owned”.
Examples of things that are generally considered to be separately owned are:
- Things purchased before moving in together
- Things purchased after separation
- Gifts and inheritance
- Money from insurance and/or damages obtained from court proceedings
In British Columbia, non-married couples who have been living together for two years or longer in a marriage-like relationship, or non-married couples who have a child, are treated the same way as married spouses when it comes to the legal determination of who owns what.
Further, in most cases, the “Homemakers” and the “Breadwinners” will be treated equally before the law as they will be considered to have both contributed in some way to the household.
Even if the “Breadwinner” was the only person who signed the ownership documents, including the mortgage, the “Homemaker” had an equal part in keeping the household up to standard and ensuring it was safe for people to live in.
Can an Ex-Partner Force the Sale of your Home?
Without an order from the Court, your spouse will not be able to force the sale of your home. Similarly, unless you have an order from a judge, you will not be able to force the sale of your home. Again, this relates to the idea of treating the ‘breadwinner’ and ‘homemaker’ as equals.
In the event that a dispute arises regarding the ownership of a property, a judge can order a “Certificate of Pending Litigation” or CPL on the property. This is a legal document stating that the exact ownership of the house has not yet been determined and that the home is subject to litigation between the parties. Should either you or your spouse try to sell the house in this situation, the prospective buyer will be aware that the ownership may change, and this will lower the chances of the house being sold.
During the period in which the CPL is valid, the details about who owns what property, and therefore who is able to sell what property, will be analyzed by the courts. Until the courts have come to their conclusion, the property will not be able to be sold.
This blog post provides general information with respect to how a family home may be sold in British Columbia following your separation.
It is strongly encouraged that you consult with a Family Law lawyer to discuss your rights and obligations with respect to how they apply to your specific situation.