The general rule for a relationship property division of the family home is that each of the spouses or partners are entitled to share equally in the family home, should the relationship be one of greater than three years in length. However, where the family home is a homestead, this rule will not apply.

A homestead is defined as a family home where the house that comprises the family residence is situated on an unsubdivided part of land and that land is not primarily used by the household. In contrast, a family home is the main family residence and all parts of the adjoining land (for example, a backyard) are used by the household.

With a homestead, the division that will occur is each spouse or partner will be entitled to share equally in a sum of money equal to the equity of either spouse or partner, or the both of them, in the homestead.

If one of the spouses or partners does not already have a beneficial interest in the land on which the homestead is located, that spouse or partner will be deemed to hold a beneficial interest in the land until their share of the equity is paid out to them.

For the purposes of the division, a homestead’s value is determined by ascertaining the capital value of the land on which the homestead is located and apportioning that value between the homestead and the remainder of that land. This will often involve a registered valuation being obtained as to the value of the homestead.

It is important to seek independent advice from a legal professional if your relationship property division includes a homestead to ensure you understand how the property will be divided.

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