The family home is the place where one or both spouses live, or have lived, with the intention of that place being the family home. It can be a house, a part of a house, a mobile home or condominium, or suite. The home can be owned or leased by one or both spouses. In urban settings the family home includes the lot the house is on. In the case of farmland the family home includes the home quarter.
Until there is a court order or an agreement, both spouses have an equal right to live in the family home. Although both spouses have the right to live in the family home, when a couple separates they usually have to decide who will live in the home, at least for the short-term. Having a plan for the immediate future gives couples the time they need to come to an agreement or ask the court for an order concerning the family home. For more information see Separation.
Under The Homesteads Act property that is or has been occupied as the family home during the spousal relationship cannot be sold or mortgaged without the consent of both spouses, even if it is owned by one spouse alone. These protections end when married spouses divorce or after common law spouses have been separated for 24 months.
Unless spouses have made a valid property agreement dealing with the family home it or its value will be distributed according to The Family Property Act. Under the Act the family home is treated somewhat differently than other family property. The value of the family home will be divided equally, even if it was owned solely by one spouse before the relationship, unless it would be unfair and unjust to do so. In the case of a family home, the court will only consider it unfair if there are extraordinary circumstances or if it would be unfair to a spouse who has custody of the couple’s children.
In some situations there may be more than one family home. For example, some couples split their time between the city and the country, with a home in both places. In these situations the court can designate which home will be treated as the family home for the purposes of division under the Act. The remaining home will be treated as other family property.