What are My Rights If I Leave the Marital Home After Separation in British Columbia?

One of the major considerations for partners during separation and divorce in British Columbia is whether to leave the marital home.

Will leaving the home affect your legal rights? Will it impact property division or who gets custody of the children? Will the court view my leaving as walking out on my kids?

These are all natural questions that may arise. However, as with many aspects of separation or divorce, the answer depends on the circumstances. There may be good reasons to leave or stay in the home. Let us take a closer look.

What is considered the “marital home” in British Columbia?

The “marital home”, “matrimonial home,” or “family residence”, as it is termed in British Columbia, is not necessarily owned by either spouse. It is defined under BC family law as:

• Owned or leased by only one spouse or both, and
• The ordinary place of residence of the spouses.

Even if the home is owned by a third party, such as the parents of one spouse, it is regarded as the family residence if the spouses usually reside there. The same definitions apply equally in common-law or “marriage-like” relationships where the couple remains unmarried.

Does a spouse lose legal rights by leaving the marital home?

A spouse does not automatically lose legal rights by leaving the marital home in BC. Ultimately, physical presence is not required to maintain these rights. However, before deciding to move out, spouses should educate themselves about the potential legal ramifications of such actions—especially concerning parenting and financial matters.

To be clear, a spouse who vacates the family residence retains the right to a claim in the property and, if applicable, an equal share of the property when it is divided. These rules apply regardless of who resides in the family home.

Spouses who leave a home they own or lease in both names can return to the residence after moving out. A spouse cannot legally lock the other spouse out of the home. In disputes, either the couple must come to a mutual agreement or a court must rule on the matter.

If the family residence is in one spouse’s name only and the other spouse moves out, that spouse’s rights depend on the circumstances. The court will consider the following factors in such cases:

• Was the property brought into the marriage or acquired after the marriage started?
• Were any contributions made by the spouses to the home while living there?
• Are there children affected by the circumstances?

Because of these important considerations, it is advisable to talk to a qualified BC family lawyer before moving out of the family home. Your lawyer can explain your legal rights and options, while also protecting your interest in the family residence from being sold or borrowed against while you are not there, if you decide to leave.

What if a spouse is at risk of harm by staying in the home?

One compelling reason to move out of the family home is the threat of harm or abuse to a spouse or the children.

Domestic safety is prioritized in British Columbia and anyone facing danger or abuse at home should seek legal assistance to understand the options available. Protection orders and court orders for exclusive occupancy of the family home may be viable options, especially if children are adversely affected by the present arrangements.

The BC Family Law Act allows the court to make a temporary order giving exclusive possession of the family residence to one spouse for a limited period, in the following circumstances:

1. Continued shared use of the family residence is a practical impossibility; and
2. It is more convenient for the spouse seeking the order to continue to live there.

What are your legal rights if you leave the family residence?

Say you decide to leave the family residence in BC. This does not usually affect your standard legal right to an equal division of marital property or spousal support. However, parental arrangements may be impacted in some circumstances.

Under BC family law, family property and debt are divided equally after separation. In reality, spouses can divide property however they wish. A legally binding marriage contract, cohabitation agreement or separation agreement will often dictate these matters.

If the court is asked to intervene, it will strive for as close as possible to an equal division of property and debt between the spouses, regardless of who is physically present in the marital home at the time.

Unless a valid written agreement specifies otherwise, couples must divide property and debt into what constitutes family property/debt and what should be considered separate property:

• Family property/debt: This includes most property or debt that either spouse accrued/incurred during the period of the cohabitation or marriage, and also the increase in value of any property one spouse owned before the relationship began.
• Separate property includes property a spouse owned before the relationship, inheritances received by one spouse, gifts given to one spouse by a third party, insurance payouts or personal injury settlements intended for one spouse, as well as certain trust interests.

So, even if your spouse owned the marital home before your marriage and you moved in, you retain the right to claim an equal division of the increase in the property’s value during the marriage (regardless of whether you moved out of the home). However, you cannot claim half of the value of the home before the marriage.

Parenting and custody

Parenting time, child support, and custody arrangements may be impacted by a decision to leave the family home—but this depends on circumstances.

The children’s best interests are paramount in all family law cases that concern them in British Columbia. If you move out and the children live primarily with the other parent, the court may consider this a key factor when deciding with whom the children live in the future, where they go to school, and the environment that can best provide stability for the child. It is also likely to affect the child support obligation.

You do not lose any parental rights by moving out, i.e., you still have the right to apply for custody, spend approximately equal time with the children, and so on. The principal risk associated with moving out of the family residence is how this may be interpreted by a judge when awarding custody. If a new routine is created for the child by the other parent, a judge may be reluctant to change it again.

Consult with a qualified family lawyer to fully understand your legal options, rights, and obligations.

What to do before and after leaving the marital home in BC

Before leaving the family home, a family lawyer may advise you to draft a written agreement with your spouse that protects your interests.

Keep records before you leave and gather any important documentation to take with you. Consider notifying your partner in writing before you leave.

After you have left the family residence, you may need to petition the court for protective orders, register your interest in the family residence, or address other matters, depending on the circumstances.

Can I force my spouse to leave the marital home in BC?

Generally, forcing a spouse to move out during a divorce is challenging, especially if you bought the house together and/or if it was purchased during the marriage. 

However, this changes if a spouse is abusive to you or the children. If domestic violence is a factor, seek legal assistance to secure an injunction or protective order against the spouse that compels the spouse to leave the family residence and cease contact with you for a certain period.

If you are the sole owner of the home and it is regarded as separate property rather than marital property (i.e., no contributions were made by your spouse), you may have the legal right to ask your spouse to leave but there remain legal steps that should be followed. If you need legal assistance in making such complex decisions and you are based in the Langley area of British Columbia, DSG Family Law offers a free initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.