Family Home & Property
- Married couples and couples who have lived together for at least 2 years have family property rights.
- This means they have a right to an equal share of the couple’s property, including the family home.
- There are some cases where one spouse may not get an equal share.
When a couple separates, they must decide how to divide their property. Couples can decide for themselves what they want to do. Each spouse must get advice from their own lawyer for the agreement to be legally binding.
Knowing what the law says about family property can help a couple reach an agreement. The law says that each spouse has the right to half of the family property unless there are special circumstances. This law applies to married couples and couples that have lived together for at least 2 years.
In almost every case couples will need to use a If spouses cannot come to an agreement the can ask the court to make family property orders. In almost every case they will need to first use a family dispute resolution process to try and resolve their issues before applying to court. If they still cannot come to an agreement, either party can ask the court for a family property order.
Any home you and your spouse live in is considered the family home. Both spouses have equal rights to the family home. It does not matter if title to the home is in only one spouse’s name. Both spouses have the right to:
- live in the home
- not have the home mortgaged, sold or rented without their agreement
- share the value of the home if they are no longer together
When a couple separates, they need to decide what to do with the family home. They may want to sell it or one spouse may want to continue to live in it.
If a couple cannot agree about who will stay in the family home they can ask a court to decide. The court will consider things like the needs of any children, how the spouses have treated each other and other places the spouses could live that they can afford.
If the family home is sold each spouse has a right to half of what is left after any money owing on the house is paid. It does not matter which spouse owns the home or owned it before they got together. The value of the home will be divided equally unless:
- it would be unfair because of very unusual circumstances, or
- it would be unfair to a spouse who has custody of the couple’s children
Even if the court has ordered that one spouse has the right to live in the home, each spouse is still entitled to half of the value. In this case the spouse who is not living in the house may need to wait before they can receive their share. For example, if the house must be sold in order for the spouses to each get their share, the sale will have to wait.
Other Family Property
Other family property includes things like:
- bank accounts
- rental or vacation homes
Each spouse has a right to half of the value of this property in most cases. If the property was owned by one spouse before the relationship, only the increase in value during the relationship is divided.
The law says that there are situations where the value of family property can be divided unevenly. The court can consider things like:
- how long the spouses have been together
- if one spouse has helped the other spouse advance their career
- when the property was bought
- if someone else, such as in-laws, helped to buy the property
Debts and Credit
Spouses can have separate bank accounts. They can apply for things like credit cards or loans on their own. You are not responsible for each other’s debts simply because you are spouses. However, you are responsible if you co-sign a loan with your spouse or sign an agreement that says that you will both be responsible for the debt.
Although spouses are responsible for their own debts, the debts of both spouses will be considered if they break up and are dividing their property. If the court is asked to divide their property, the court will consider what the money was borrowed for and who will need to continue to pay the debt.
Published on October 21, 2016.