For many people, the largest asset they may ever own is their matrimonial home. It is meant to be a place of security and comfort where couples hope to raise a family, so it is not surprising that the matrimonial home receives special treatment under Ontario family law.
A common question is: What happens during a divorce if the matrimonial home is only in one spouse’s name?
For legally married spouses in Ontario, being the only person on title does not mean that the titled spouse can simply force the other spouse out or deal with the home as though the marriage has no effect. Under Ontario’s Family Law Act, both spouses have an equal right to possession of a matrimonial home, regardless of which spouse legally owns it.
Ownership, possession and the financial value of the home are separate issues. Understanding those differences can be important when negotiating a separation or divorce.
Key Takeaways
- If you are legally married, both spouses generally have an equal right to possess the matrimonial home, even if only one spouse is on title.
- Being on title determines legal ownership, but it does not automatically determine who can remain in the home following separation.
- A spouse generally cannot sell or mortgage a matrimonial home without the other spouse’s written consent, subject to certain court remedies.
- A court can grant one spouse exclusive possession of the matrimonial home in appropriate circumstances, regardless of ownership.
- The matrimonial home receives special treatment when married spouses calculate equalization of net family property.
- These statutory matrimonial-home protections generally apply to legally married spouses, not common-law partners.
This article provides general information about Ontario family law and is not legal advice. If you are separating and have questions about ownership, possession or division of your home, consider speaking with a Toronto matrimonial home lawyer.
What Is a Matrimonial Home in Ontario?
Under section 18 of Ontario’s Family Law Act, a matrimonial home is generally property in which either spouse has an interest, and that was ordinarily occupied by the spouses as their family residence at the time of separation.
Importantly, the property does not have to be jointly owned.
A home can therefore qualify as the matrimonial home even if:
- only the husband is on title;
- only the wife is on title;
- one spouse purchased the property before the marriage; or
- one spouse contributed significantly more toward its purchase.
Ontario law can also recognize more than one property as a matrimonial home. Depending on how a property was used, a cottage or vacation property may potentially qualify as well.
For a more detailed overview, see Gelman & Associates’ guide to the matrimonial home in Ontario.
Does It Matter Whose Name Is on the Matrimonial Home?
Yes, but perhaps not in the way many people expect.
Whose name appears on the title is relevant to legal ownership. However, Ontario family law separately provides married spouses with rights relating to possession of the matrimonial home.
Section 19 of the Family Law Act states that both spouses have an equal right to possession of a matrimonial home.
As a result, if a husband owns the home in his name alone, his wife does not automatically have to leave simply because she is not on title. The same applies if the wife is the sole registered owner.
This distinction between ownership and possession is one of the most important concepts involving the matrimonial home.
Can My Spouse Make Me Leave If My Name Is Not on the House?
Not simply because your name is absent from title, provided you are legally married and the property qualifies as a matrimonial home.
Both married spouses generally have an equal right to remain in the home following separation. CLEO explains that this right applies even where only one spouse owns or rents the residence.
That right can eventually change if, for example:
- the spouses enter into an agreement about possession;
- a court makes an order concerning possession;
- the property is sold;
- a lease ends; or
- the spouses divorce.
This does not mean that both spouses must continue living together indefinitely. It means that sole ownership, by itself, does not automatically allow the owner to remove the other married spouse.
Can the Spouse Who Owns the Home Sell It Without Permission?
Generally, a spouse cannot simply sell or mortgage a matrimonial home without complying with the protections in the Family Law Act.
CLEO explains that a married spouse cannot sell or mortgage the matrimonial home without the other spouse’s written permission.
There are exceptions and court remedies. For example, Ontario law permits a court in specified circumstances to authorize a disposition or encumbrance where the other spouse cannot be found, is incapable of giving or withholding consent, or is unreasonably withholding consent.
This is more precise than saying that both spouses must always agree before a property can ever be sold. If the spouses cannot reach an agreement, court proceedings may become necessary.
Who Gets to Stay in the Matrimonial Home During a Divorce?
If spouses cannot agree about who will remain in the house, one spouse may apply to the court for exclusive possession of the matrimonial home.
An exclusive possession order allows one spouse to occupy the home while restricting the other spouse from entering or residing there.
Importantly, an exclusive possession order does not determine final ownership of the property or how its value will eventually be divided.
Under Ontario law, the court can make an exclusive possession order regardless of which spouse owns the matrimonial home.
When considering such an application, factors may include issues such as the best interests of children affected, the spouses’ financial circumstances, other available accommodation, existing agreements and any violence committed against a spouse or child.
Does the Matrimonial Home Get Split 50/50 in an Ontario Divorce?
Not exactly. Ontario generally does not divide each individual asset in half. Instead, married spouses calculate their respective net family property, and the spouse with the higher net family property generally owes the other spouse an equalization payment equal to half of the difference.
The matrimonial home, however, receives special treatment in that calculation.
If one spouse owned the matrimonial home on the date of marriage and still owns it on the date of separation, that spouse generally cannot deduct the home’s date-of-marriage value in the same way they could for many other assets. CLEO explains that, in that situation, the home’s total value can effectively enter the equalization calculation rather than only the increase in value during the marriage.
That special rule can significantly affect the equalization payment.
For more information, see our guide to division of property in Ontario.
What If One Spouse Owned the House Before the Marriage?
Owning a house before getting married does not necessarily mean its entire pre-marriage value will be protected if that same property is the matrimonial home when the spouses separate.
This is one of the most important special rules surrounding matrimonial homes.
Normally, when calculating net family property, a spouse may receive a deduction for the value of property they owned when the marriage began. However, special treatment applies where that property is the matrimonial home at separation.
As a result, someone entering marriage with a home should not assume that simply keeping the property in their sole name will protect its pre-marriage value in a future equalization calculation.
Because the financial consequences can be significant, anyone bringing a home into a marriage may want to obtain advice about prenuptial agreements and marriage contracts before marriage.
Can a Prenuptial Agreement Stop My Spouse From Living in the Matrimonial Home?
A marriage contract can deal with many property issues, but the matrimonial home is subject to special statutory protections.
Ontario law does not allow spouses to contract out of all of the possession rights associated with a matrimonial home simply by signing a prenuptial or marriage agreement.
This means a provision dealing with ownership or eventual property division should not be confused with the married spouses’ statutory rights concerning possession of the home while those rights apply.
A lawyer can help distinguish what a marriage contract can address from matrimonial-home rights that Ontario legislation specifically protects.
Do We Have to Sell the Matrimonial Home After Separation?
No, not necessarily. Selling the home is one common option, but it is not the only possible outcome.
There are typically several ways spouses may resolve the matrimonial home as part of an overall property settlement:
- One option is to sell the property and deal with the proceeds as part of the spouses’ broader financial settlement.
- Another option is for one spouse to buy out the other spouse’s ownership interest, where applicable.
For example, if both spouses are registered owners and one wishes to remain in the home, that spouse may need to qualify for financing on their own, refinance the mortgage and arrange for the other spouse’s interest to be transferred.
The financial details of any buyout must be considered alongside the overall equalization calculation. A spouse should not assume that simply dividing the home’s equity in half will necessarily produce the correct family property settlement.
Disputes about a proposed sale can sometimes require court involvement. Gelman & Associates has previously discussed an Ontario case involving a court-ordered sale and purchase of an interest in a matrimonial home.
What Happens If the Matrimonial Home Has a Mortgage?
A mortgage creates another important issue. Family law rights and obligations do not automatically change the contract between borrowers and their lender.
If both spouses signed the mortgage, one spouse moving out does not generally remove that person from the mortgage obligation. Similarly, a separation agreement stating that one spouse will keep the property does not, by itself, require the bank to release the other borrower.
Where one spouse wants to keep the matrimonial home, refinancing may therefore be required.
The spouse wishing to remain in the home may need to demonstrate that they qualify to carry the mortgage based on their own income, debts and financial circumstances.
What If We Are Common-Law and the House Is Only in One Partner’s Name?
The treatment of a shared living space can be very different for common-law partners.
Ontario’s special matrimonial-home protections generally apply to legally married spouses.
A common-law partner whose name is not on title does not automatically have the same statutory right to remain in the family home, and the owner can generally sell or mortgage the property without the other common-law partner’s consent.
However, that does not necessarily mean a non-owner common-law partner can never have a property claim.
Depending on the circumstances, claims based on legal principles such as unjust enrichment, constructive trust or resulting trust may potentially arise where one partner made financial or other contributions connected with property owned by the other. Gelman & Associates discusses these distinctions in its guide to marriage and common-law relationships in Ontario.
These claims are fact-specific and differ considerably from the automatic equalization rights available to married spouses.
Frequently Asked Questions About the Matrimonial Home in Ontario
If the House Is in My Husband’s Name, Do I Have Rights to It in an Ontario Divorce?
If you are legally married and the property qualifies as a matrimonial home, you generally have an equal right to possession even if only your husband is on title.
The home’s value can also be relevant to the equalization of net family property.
If the House Is in My Wife’s Name, Can She Make Me Leave?
Sole ownership alone generally does not give a married spouse the automatic right to remove the other spouse from a matrimonial home.
Unless the spouses agree otherwise or a court makes an applicable order, both married spouses generally have possession rights.
Does Being on Title Mean I Automatically Keep the House?
No. Being on title establishes ownership, but matrimonial-home possession rights and property equalization are separate issues.
A sole owner may ultimately remain the legal owner, sell the property or reach another settlement, but their ownership does not eliminate the other married spouse’s rights under Ontario family law.
Can I Change the Locks on the Matrimonial Home After Separation?
A married spouse should not assume they can exclude the other spouse simply because they own the property.
Because both spouses generally have an equal right to possession, changing locks to prevent the other spouse from entering can raise significant legal issues unless there is an agreement, applicable court order or other lawful basis for doing so.
Who Pays the Mortgage After Separation?
There is no single answer that applies to every separation.
Responsibility between the spouses may depend on who signed the mortgage, who remains in the property, their financial circumstances, any separation agreement and any court orders.
The mortgage lender’s contractual rights are also separate from the family law arrangements between the spouses.
Can a Judge Force the Matrimonial Home to Be Sold?
Property disputes can result in court proceedings where spouses cannot agree on what should happen to the home. The particular legal mechanism and whether a sale will be ordered depend on the facts, ownership structure and issues before the court.
Legal advice should be obtained before assuming either spouse can unilaterally force or prevent a sale.
Can There Be More Than One Matrimonial Home?
Yes. Ontario’s statutory definition can potentially apply to more than one property where the legal requirements are met. For example, a cottage regularly occupied by the spouses as a family residence may potentially qualify in addition to their primary residence.
Speak With a Toronto Matrimonial Home Lawyer About Your Rights Today
The matrimonial home receives special treatment under Ontario family law, and the name on title is only one part of the analysis.
For married spouses, ownership, possession, equalization and the eventual sale or transfer of the property are separate but interconnected issues. Whether one spouse owned the property before marriage or both spouses bought it together, decisions involving the home can have significant long-term financial consequences.
If you are separating or divorcing and have questions about who can remain in the home, whether it can be sold, a potential buyout or how its value will affect equalization, contact Gelman & Associates or call 1-844-736-0200 to book a consultation with a Toronto matrimonial home lawyer.
Disclaimer: This article provides general information about the matrimonial home and property division in Ontario. It is not intended to provide legal advice. Rights can depend on marital status, ownership, the particular property and other circumstances. Consult a family law lawyer about your particular situation.
