What’s Mine is Yours? What’s Yours is Mine?

A Glimpse Into Property Division and BC Family Law

Brittney Menzel

February 20th 2026

Property division post-separation can be daunting but ultimately depends on how the property is characterized. The categories are as follows:

1.        Family property

2.      Excluded property

3.      Separate property

Family Property

Family property includes property that was acquired during a marriage or marriage-like relationship and that is owned by at least one spouse at the date of separation. This can include bank accounts, homes, vehicles, and RRSPs among other items of property.

One common misconception is that property held in only one spouse’s name is not family property. In BC, family property is not determined by who holds legal 'named' title to that property. For example, if only one spouse is on title to the family residence, the family residence is still considered family property. This example also applies to vehicles registered in only one spouse’s name.

The Family Law Act stipulates that upon separation, each spouse has a right to an undivided half interest in all family property, meaning that as a starting point, each spouse is entitled to an equal (50/50) share in all family property. If unequal division of family property is sought by way of court order, that spouse seeking unequal division needs to prove that equal division is significantly unfair. This is a legal term with a long history of caselaw interpretations to determine what actions and circumstances reach the threshold of significant unfairness.

It is important to note that parties can suggest and mandate unequal division of family property by way of agreement if the parties are able to resolve their issues outside of court (or in advance of separation by way of a cohabitation or marriage agreement).

Excluded Property

There are circumstances where property owned by one spouse upon separation is not family property and instead falls within the definition of excluded property. Excluded property includes but is not limited to the following:

1.        Property owned by one spouse prior to the start of the marriage or marriage-like relationship.

2.      Gifts to one spouse from a third party. For example, a gift to one spouse from a friend or parent.

3.      Inheritances to one spouse.

Unlike family property, excluded property is not subject to equal division upon separation. However, it is still subject to a degree of division. For excluded property, the increase in value of the excluded property from the date of the marriage or marriage-like relationship to the date of separation is divisible. For example, if a spouse owned a home that was valued at $500,000 prior to the marriage or marriage-like relationship and upon separation that value skyrocketed to $1,500,000, the increase in value totaling $1,000,000 is divisible. Given the historical rise in BC home values, the value of an increase in excluded property can be significant.

Separate Property

Separate property is property purchased post-separation and is not divisible. However, it is important to note that if separate property was derived from family property or is a result of the disposal of family property, it remains subject to division. For example, a spouse cannot sell family property post separation and purchase additional property with the proceeds in attempt to avoid division.

Property division is a common yet complex area of family law. Please seek legal advice related to your rights and possible entitlements regarding property division.

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