Going through a separation is never easy, and it becomes even more complicated when you share a house, a mortgage and other financial commitments with your partner. You suddenly have important decisions to make at a time when you’re already dealing with a lot.
Who keeps the house, how do you divide its value and what happens to the mortgage when you separate? Most of all, how can you move on without putting your savings or your peace of mind at risk? This guide walks you through your options.
In brief
- In Quebec, how property is divided after a separation depends on the couple’s legal status, since married spouses and common-law partners don’t have the same rights.
- For common-law partners, whether the house is in one name or in both names makes all the difference, as it determines who has rights to the property.
- Child custody can take priority over ownership, which means a parent may be allowed to stay in the house even if they don’t own it.
- When a couple separates, a joint mortgage stays in both names, and both partners remain responsible for the loan until it’s officially transferred or paid off.
- There are three main ways to deal with the house: sell it and split the proceeds, buy out your partner’s share or have one partner assumes the mortgage.
Just separated? What happens to your mortgage and where to start
In the first days after a separation, a few key questions will help you get a clearer picture of your new situation. Three of them have to do with the house.
- Who stays in the house for now? The answer depends on your marital status and on whose name appears on the deed of sale, as explained further below.
- Who pays the mortgage, in the meantime? If both names are on the loan, you both remain responsible for it, regardless of who lives in the house or who makes the payments. This also means that a late payment will affect both partners’ credit.
- What is the house worth today? Every discussion about dividing the property starts with this number, which is why it’s essential to have its market value set by a chartered appraiser. This way, you can rely on a fair and impartial price.
Above all, try not to rush into any decision. Taking the time to assess your situations and weigh your options will help you choose what truly works for you.
How property is divided in Quebec based on your marital status
In Quebec, the rules for dividing property after a separation depend on the couple’s legal status, so a married couple isn’t protected in the same way as a common-law couple.
Here’s a quick overview of each situation before going into the details.
| Status | Automatic division? | Legal basis |
|---|---|---|
| Married couple | Yes, 50/50 of the family patrimony | Civil Code of Québec |
| Parental union (since June 2025) | Partial, under certain conditions | Parental union regime |
| Common-law partners | No, based on a contract or the deed of sale | Private agreement |
1. Separation or divorce for married couples
Married spouses are considered equal under the law when it comes to dividing the family patrimony. In the event of a divorce, each spouse is entitled to half of the family property built up during the marriage, which generally includes the principal residence.
For a house, this means both spouses are legally entitled to 50% of the property’s net value, even if only one of them is listed as the owner on the deed of sale.
The right to live in the family residence is also protected, so the spouse who isn’t the owner can’t be forced to leave unless a court decides otherwise.
2. Separation under the parental union regime
Since June 2025, the parental union regime has offered a new legal framework for unmarried couples who have at least one child together and meet certain cohabitation conditions.
While this regime doesn’t provide all the protections of marriage, it does give these common-law partners certain property rights, including:
- a fair division of property, including the principal residence, according to specific rules set out in the law;
- in some cases, the right for the parent with primary custody of the child to stay in the house;
- the possibility for a judge to rule on how property is divided when certain fairness criteria are met, even if only one partner owns it.
Keep in mind that this regime doesn’t apply automatically. You’ll need to check whether your situation meets the criteria set out in the law and, if needed, ask the court to recognize it. A notary or a lawyer can guide you through this step.
3. Separation for common-law partners
Common-law partners who separate are subject to very different rules. Since they aren’t married, there’s no presumption that their property will be shared, even after many years of living together.
If you signed a cohabitation agreement, it will serve as the basis for dividing your property. Otherwise, the name on the deed of sale determines what happens to the house, and the property is divided according to the shares stated in the deed (for example, 50/50 or 60/40).
That said, ownership doesn’t settle everything, since having children can change who gets to stay in the house, even when that partner isn’t the owner.
Who gets to stay in the house after a separation?
This question needs to be settled quickly, especially when the separation is tense. The answer depends on the agreement you have as a couple, but also on your family situation.
Start by checking whether you have a contract that sets out each partner’s rights in the event of a breakup. Your marriage contract, civil union contract or cohabitation agreement, if you had one drawn up, may include a clause on this, in which case you’ll need to follow what it says.
Couples with children: the custodial parent can stay
When a couple breaks up, judges generally allow the parent who gets custody of the children to stay in the home. This applies even if that parent is neither the owner nor the tenant, and whether or not they were married to the other parent. In most cases, however, it’s a temporary arrangement.
To stay in the home, the parent must file an application for a safeguard order with the court. If custody hasn’t been decided yet, you can ask the judge to rule on the use of the home at the same time.
No children or shared custody: ownership decides
If you don’t have children, or if you share custody, your rights will depend on your situation:
- Only one common-law partner owns the house: the partner whose name is on the deed of sale can usually ask the other to leave, whether you lived together for 2 years or 20.
- Both partners co-own the house: since you both have the right to stay in the home, you’ll need to reach an agreement.
- Married couples or couples in a recognized union: the family residence protection described above applies, so the spouse who isn’t the owner can’t be forced to leave without a court decision.
In all cases, the partner asking the other to leave must act in good faith and can’t abuse their right. This means giving reasonable notice so the former partner has enough time to find a new place to live.
If you can’t come to an agreement, family mediation is the first option to consider. If that doesn’t work, a judge can make the decision.
Before you decide: 5 questions to ask yourself
Whatever your marital status, asking yourself these questions will help you make an informed decision about the house.
- Can you afford the mortgage on your own? If your income has dropped since you bought the house, or if you now rely on a single income, qualifying could be more difficult.
- Is your mortgage term still running? If so, you may have to pay penalties to transfer or break your mortgage before the end of the term, and these can sometimes add up to several thousand dollars.
- Do you have children? Having children can influence who keeps the home and for how long, especially under the parental union regime.
- Are both names on the mortgage? If they are, you both remain legally responsible for the loan until an official transfer is completed.
- Has the property’s value changed since you bought it? A recent appraisal by a chartered appraiser is key to making a fair decision.
3 options for dividing the house in a separation
When a couple has to deal with a property after a separation, there are generally three possible paths:
- selling the property and splitting the proceeds;
- buying out the other partner’s share to become the sole owner;
- signing a mortgage assumption agreement.
Good to know: before making such an important decision, it’s strongly recommended to consult a notary or a family law professional. Their expertise will help you avoid costly mistakes and make sure your agreement meets all legal requirements.
Option 1: Sell the family home and split the proceeds
This is often the simplest option, especially when neither partner wants to keep the property or is able to. Selling ends the co-ownership and allows for a clean break, both financially and emotionally, so you can each start over on new ground.
How the proceeds are divided depends on your marital status:
- Married couples: the profits are generally split equally, according to the family patrimony rules.
- Common-law partners who co-own the house: the division depends on any agreements in place or on the shares stated in the deed of sale (for example, 50/50 or 60/40).
- Parental union: specific rules may apply if the house is considered protected property or if one parent has the use of it to provide stability for the child, so legal advice is strongly recommended.
To get the best possible price and limit tension between you, consider working with a real estate broker. This professional will guide you through each step of the sale and help you set a fair asking price based on current market conditions.
Option 2: Buy out your partner’s share
If one partner wants to keep the property, the mortgage can be transferred their name alone. Before going any further, check with your financial institution to find out whether any penalties apply for breaking your mortgage contract.
You’ll also need to know the property’s current market value, and a chartered appraiser can provide an accurate valuation. The buyout amount is then calculated from this value, minus the mortgage balance and any penalties, and the remaining amount is divided according to each partner’s share.
Keep in mind that you’ll still need to qualify for the mortgage on your own. Your financial institution will look at:
- your income, which must be high enough to pass the mortgage stress test at the qualifying rate;
- your debt ratio, since your total debt, including the mortgage, can’t exceed the lender’s limits;
- your credit history, as a good credit score is a must;
- your mortgage payments, which need to be up to date.
If you don’t qualify on your own, you can turn to a co-signer (or guarantor) who agrees to back the loan. Just make sure you understand what this involves, since a co-signer is legally committed to repaying the loan if you default.
Option 3: Mortgage assumption
When one partner agrees to take over the mortgage, you can both sign a mortgage assumption. This allows one of you to stay in the house and take over all the mortgage payments.
This option is usually considered when:
- the penalties for breaking the mortgage contract are too high;
- selling the property would mean taking a financial loss;
- one partner wants to avoid negotiating a brand-new mortgage.
Watch out, though: a mortgage assumption doesn’t automatically remove the departing partner’s name from the contract. Until the debt is officially transferred, both partners remain legally responsible for the loan, even if only one of them is making the payments. This can make it harder for the partner who moved out to get new credit or a new mortgage.
In summary: which option is right for you?
| Option | Best if... | Watch out for |
|---|---|---|
| Sell | Neither of you wants to keep the house or can afford to | Selling timeline and brokerage fees |
| Buy out your partner’s share | One partner wants to stay and qualifies financially | Mortgage qualification and penalties |
| Mortgage assumption | Selling would mean a loss or the penalties are too high | Both names stay on the loan until the official transfer |
Whichever option you choose, getting support from a professional is strongly recommended to secure the transaction and avoid unpleasant surprises.
Need to divide the house with your ex?
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