The family home is where spouses/partners lived while they were together. One or both of you may own or rent the family home. Who lives in the family home after the separation and what to do with it long-term are often points of disagreement.
The information on this page applies to spouses and partners only. The law is different for unmarried couples who are not adult interdependent partners.
On this page, “partner” refers to an adult interdependent partner.
Need to know
- If you and your spouse/partner agree on what to do with the home, you can include these details in your separation agreement.
- If you cannot agree on what to do with the home, a professional or the court can help.
- An exclusive possession order can allow one person to stay in the family home for some time and order the other person to move out.
- If someone is living in the home but not cooperating on dealing with it, the court can make decisions.
Get started
Learn the basics about the rules for dividing everything up before you deal with your family home.
Next, you should gather information about your family home.
If you rent your home
- the names on the lease
- the lease renewal or end date
- the process for ending the lease early
- the rent amount, when it is due and who pays it
If you own your home
- the names registered on titleCertificate of Title A document from the Alberta Land Titles Office that says who the owners of a property are and others who have an interest in the property, such as a mortgage holder., and if multiple people are registered, whether they are joint tenantsjoint tenants A way to own property with others where each owner owns the whole property equally. If one owner dies, the surviving owners remain the owners through the right of survivorship. or tenants in commontenants in common A way to own property with others where each owner owns a share of the property. The shares of each owner do not have to be equal. For real estate, the Certificate of Title must say what share each owner owns.
- whether the home has a mortgage on it, and if so, how much has been paid and how much is still owing on it
- who contributed to the equityequity The value of an asset minus any money owing on it. For example, a person’s equity in their house is the value of the house less the mortgage amount they still owe. of the home, such as who paid the down payment or whether you received a gift from someone else
- the market value of the home
If one or both of you inherited the family home, visit the What happens to an inheritance page to learn more.
Figure out short-term living arrangements
Whatever you decide to do short-term does not have to be the same as how you agree to deal with the family home long-term.
Once you separate, you may or may not want to keep living in the same home together. Maybe one of you will move out while the other stays in the home. Maybe you will both stay in the home but live separate lives. If you have children, maybe your children will stay in the home full-time while each of you takes turns living there with them, which is called nesting. Or maybe you both want to move to different homes.
If you have children, your living arrangements should be in their best interests. Think about what living arrangement will affect them the least. Your living arrangements will also impact the parenting plan.
If you cannot agree on a living arrangement, you can ask the court for an order giving you exclusive possession of the family home. You can get an order for a home you rent or own. This order gives you the right to live in the home for a period of time. The other person must move out.
If you are living in the same home while separated
To get a divorce, you usually need to live separate and apart for at least one year. You can live in the same home and still live separate and apart.
You and your spouse/partner are living separate and apart if you:
- rarely communicate with each other
- have separate bedrooms
- do not have sex with each other
- do not help each other with household tasks
- do not do activities together
Exclusive possession orders
An exclusive possession order is a court order that allows one spouse/partner to live in the family home and orders the other person to move out. The order can include household goods and vehicles.
Often this comes up when the spouses/partners have children and one parent wants to stay in the home with the children to reduce the impact of the separation on them.
You can get an exclusive possession order for a home you own or rent. You can get an exclusive possession order even if your name is not on the titleCertificate of Title A document from the Alberta Land Titles Office that says who the owners of a property are and others who have an interest in the property, such as a mortgage holder. or lease.
You must apply for an exclusive possession order in the Court of King’s Bench. If you have only been to the Court of Justice to deal with other separation issues, you must start a new court file in the Court of King’s Bench to apply for an exclusive possession order.
When deciding whether to make an order for exclusive possession of the family home, the court will think about:
- Are there other places for one spouse/partner to live that they can afford?
- If the spouses/partners are renting the family home, are there any restrictions or conditions in the lease agreement?
- Who will likely get the family home long-term? Is the family home exempt property?
- What are the needs of the children living in the family home? What will the parenting arrangement be once the parents no longer live in the same home?
- What are the financial situations of each spouse/partner? This includes who is paying child support or spousal/partner support.
- If there conflict between the spouses/partners? And if so, how bad is it?
- Are there any existing court orders about child support, spousal/partner supportspousal/partner support On this website, referring to both spousal support and partner support. or property division?
If you are applying in Edmonton or Calgary
You must go to Family Docket Court. Learn more on the Go to Family Docket Court page.
If you are applying outside Edmonton or Calgary
- Complete a Claim – Family Law Act and a Statement – Exclusive Possession of Family Home / Household Goods.
- Make three copies of each form: one for you, one for the court and one for the respondentrespondent The person who responds to the applicant’s request for an order..
- File your completed forms at the Court of King’s Bench.
- If you have already been to the Court of King’s Bench to deal with other separation issues, use the same file number and courthouse as before.
- If you have been to the Court Justice to deal with other separation issues, you must file for divorce in the Court of King’s Bench location closest to you. The court clerk will give you a new file number in the Court of King’s Bench.
- If you have not yet been to court to deal with separation issues, choose the Court of King’s Bench location closest to you. The court clerk will assign you a new file number.
- Pay the filing fee or, if you qualify, ask for a fee waiver. To learn more, download CPLEA’s Court Fees and Waivers in Alberta document.
- Serve a copy of your filed forms on the other person. Complete and file an Affidavit of Service – Applicant to prove you did this before the court date.
- You will get copies of the respondentrespondent The person who responds to the applicant’s request for an order.’s filed court document.
- Show up for your scheduled court date.
How you respond depends on what process the applicantapplicant The person who applies for a court order. started.
If the applicantapplicant The person who applies for a court order. filed a Notice to Attend Family Docket Court
Read the Go to Family Docket Court page to learn what to do.
If the applicantapplicant The person who applies for a court order. filed a Claim – Family Law Act
- You will get copies of the applicantapplicant The person who applies for a court order.’s filed court forms. Do not ignore them. Note the court date and what you must do before then.
- Complete a Response – Family Law Act form and a Reply Statement – Exclusive Possession of Family Home / Household Goods.
- Make three copies of each form: one for you, one for the court and one for the applicantapplicant The person who applies for a court order..
- File your forms at the same courthouse and using the same court file number as on the applicantapplicant The person who applies for a court order.’s forms.
- Serve a copy of your filed forms on the applicantapplicant The person who applies for a court order. at least 10 days before the court date. Complete and file an Affidavit of Service – Respondent to prove you served them before the court date.
- Show up for your scheduled court date.
Figure out long-term arrangements
If you rent the family home
If you and your spouse/partner rent the family home, you have options. These options apply even if only one person’s name is on the lease.
To learn more about your rights as a tenant, visit CPLEA’s Laws for Landlords and Tenants in Alberta website.
You may choose to end your lease early so you can both move out. Review your lease to see what it says about how to do so.
If one person wants to stay in the home, they can negotiate a new lease with the landlord in their name only.
Persons experiencing domestic violence can take steps to end their lease early to get away from the person causing abuse.
To learn more, visit WillowNet – a CPLEA website about abuse and the law in Alberta.
If you own the family home
If you and your spouse/partner own the family home, you have several options. These options apply even if only one person is on titleCertificate of Title A document from the Alberta Land Titles Office that says who the owners of a property are and others who have an interest in the property, such as a mortgage holder. and if you still have a mortgage owing.
Sometimes one person has the resources to buy the other person’s share of the family home. This is known as buying someone out of their equityequity The value of an asset minus any money owing on it. For example, a person’s equity in their house is the value of the house less the mortgage amount they still owe..
The buyer does not always need to have cash to do so. They may be able to remortgage the property under their name alone. They can then use some of the mortgage funds to pay the other person for their share.
If you agree that one person will buy out the other person, the buyer should talk to their bank or mortgage broker to see if they qualify. Then, you both need to:
- decide what portion of the equityequity The value of an asset minus any money owing on it. For example, a person’s equity in their house is the value of the house less the mortgage amount they still owe. each person is entitled to after accounting for exempt property
- decide how to divide the equityequity The value of an asset minus any money owing on it. For example, a person’s equity in their house is the value of the house less the mortgage amount they still owe. in the home. This is the value you own – usually the market value of the home minus whatever is owing on the mortgage.
- agree what the market value of the home is. You may need to have a real estate professional appraise the home.
You may decide to sell the home and divide what’s left over after paying the mortgage, realtor and lawyer. Then, you both need to agree on:
- what the market value of the home is. You may need to have a real estate professional appraise the home.
- what real estate agent you will use to help you sell the home
- the selling terms and conditions, including the price, the earliest possession date, and what goods you are and are not including in the sale
- how to divide the money left over after paying the mortgage and other debtsdebts Money you owe to others, including individuals and companies. Debts include mortgages, credit cards and loans. secured by the home, known as the proceedsproceeds The money left from the sale of an asset after all the debts related to it are paid. For example, the proceeds from the sale of a house are the money left over after paying the mortgage owing, the realtor and the lawyer.
If you cannot agree on how to divide the proceedsproceeds The money left from the sale of an asset after all the debts related to it are paid. For example, the proceeds from the sale of a house are the money left over after paying the mortgage owing, the realtor and the lawyer., the court may hold the money until you get an order dividing property.
You may have to ask the court to force the sale of the family home if you both own it and cannot agree how and when to sell it. This is known as a partition and sale order under Alberta’s Law of Property Act.
Depending on the situation, the court can order:
- physical division of land, such as farmland
- the sale of the property and how the spouses/partners should split the proceedsproceeds The money left from the sale of an asset after all the debts related to it are paid. For example, the proceeds from the sale of a house are the money left over after paying the mortgage owing, the realtor and the lawyer.
- one person to sell their interest in the property to the other person
The court can direct each step of the sale process from who the real estate agent is, what the price will be and when those living in the home must move out. The court can also allow only one person to sign the documents to sell the home if the other person refuses to cooperate with moving the sale forward.
To get an order, follow the instructions on the Get or respond to a court order page.
Potential issues
One person does not feel safe living with the other but does not have enough money to move out.
You can ask the court for an exclusive possession order. If you rent the home, you may be able to end the lease early. Read above on how to get an exclusive possession order. Find more resources on the If you are in danger page.
One person has exclusive possession of the family home with little or no payments on the property while the other person has to pay rent or a mortgage to live elsewhere.
The person with exclusive possession may have to compensate the other person for the other person’s high living costs, which is known as occupation rent. This is mostly likely to happen when there is little or no mortgage or money owing on the family home. Spousal/partner support can also address differences in expenses.