When dealing with the family home in a family law matter, ex-spouses have the option to apply for an order to sell the family home by relying on the Family Law Act. You can read more about this topic in our previous post: Love it or List it – Keep or Sell the Family Home in a Divorce?
The Family Law Act, however, may not apply in some circumstances, including, but not limited to when:
- the dissolution of the relationship results in parties not meeting the definition of “spouse” under the Family Law Act because they did not live together in a marriage-like relationship for two or more years; or
- the parties waited too long before starting the process of legal separation by filing a Notice of Family Claim. Generally, ex-spouses must file their Notice of Family Claim setting out that they are seeking an order for the division of family property, including the family home, within the following timelines:
- if the spouses were not married, but living in a marriage-like relationship, the ex-spouses have two years from the date of separation;
- If the ex-spouses were married, the ex-spouses, have two years from the date of the divorce.
You should disclose all relevant details regarding your relationship to your lawyer, so your lawyer can assess all available options and advise on the appropriate next steps to take.
What options are available to parties when the Family Law Act does not apply?
Under the Partition of Property Act, when a party has at least 50% interest in the family home, the party has a prima facie right to an order for the sale of the family home and can do so by applying to the Supreme Court for such an order. Seeking legal counsel to assist on such a technical application is recommended. Your lawyer will advise you on the required court forms and the evidence that would be included in your materials.
When meeting with your lawyer, it is also important to discuss at the onset the approach that the court will take at the hearing. In an application for the sale of the family home under the Partition of Property Act, the Court’s discretion is broad and unfettered and turns on whether justice requires that the family home not be sold. When discussing this matter with your lawyer, since the court will assess all relevant facts to determine whether a good reason exists to refuse the order for the sale of the family home, discussing all relevant facts and evidence—including evidence that may not be supportive of your position, is crucial in assessing your likelihood for success in such application.
On the other hand, in an application for sale of the family home under the Family Law Act, the Court has a tendency to be very cautious when it comes to granting an order for the sale of the family home. The Court takes a cautious approach because of the permanent consequences that flow from such an order. The Court will assess a plethora of factors including, support issues, whether there are any children of the marriage, the needs of the children and the circumstances of the ex-spouses (or other parties) involved in the proceeding. In making its decision, the Court is primarily concerned with whether granting an order for sale of the family home is advantageous for both parties.
Successfully seeking an order for the sale of the family home will depend on the facts of each case. Litigation, and family law litigation in particular, are undoubtedly emotionally charged and can be a significant cause of stress and anxiety.
You should contact LK Law’s Family Law Group to discuss your options regarding the family home.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.