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Division of Property: The Matrimonial Home

For many people, the largest asset that they may ever own is their matrimonial home. It is meant to be a place of security and comfort where couples hope to rear and raise a family. So it is not surprising that the matrimonial home receives special attention during any divorce proceeding.

Since negotiations involving the matrimonial home can be quite complex and may have far-reaching implications on other issues relating to your divorce, it’s vital that you understand the many rights associated with such properties. For instance:

  • ♦ Regardless of actual ownership, both spouses have a right of possession to a matrimonial home;
  • ♦ In order for a matrimonial home to be sold, both parties must consent to putting it on the market;
  • ♦ If the court deems it appropriate, the court can grant exclusive possession of a home (particularly where criminal behaviour is evidenced); and
  • ♦ Nothing can limit the right of possession to a matrimonial home – not even a prenuptial agreement

As indicated above, the law holds the matrimonial home in special regard and provides for a distinction between the right of possession of the matrimonial home and the right of ownership. The Family Law Act states that married spouses are each entitled to possession of the matrimonial home or to live there, until they agree otherwise, either through a negotiated separation agreement or if the court grants an order for exclusive possession.

What is a Matrimonial Home?

A matrimonial home is defined as any property in which you have an interest and in which you were using as a family residence at the time of separation, irrespective of who actually owns the property.

Many people are unaware that more than one residence can be considered a matrimonial home, and may include cottages and vacation homes.

It is also important to note that such property sharing provisions only apply to legally married spouses. For common law couples, no special treatment is afforded to their shared residence. For all intents and purposes, the spouse who is not on title is just like a guest in the home and can be asked to leave at any time. That said, the “property-less” spouse may be entitled to a payment from their common law partner (the home owner) to pay them back for a direct or indirect contribution they may have made to the property. These claims are referred to as trust claims.

Split the Difference or Make an Offer?

There are two typical avenues that most couples follow when dealing with divorce and the transfer of the matrimonial home. One option is to sell the property and deal with the sale as part of a complete and final settlement.

Another option is for one spouse to buy out the other spouses’ interest in the home. To do this, the spouse wishing to retain the home may need to re-negotiate a mortgage based on a single income. If/when approved, the other spouse can then be removed from title.

Once a new mortgage (if necessary) has been approved and the other partner has been removed from title, the spouse remaining in the home may then be required to make a lump sum payment to the other in order to conclude the financial settlement on the property.

**Please note: the preceding is a very high level synopsis of divorce and the matrimonial home. The reality is that there are a host of other complicated issues to also consider. As with most matters related to divorce, it’s best to consult a family law lawyer to assist you.

If you have questions regarding your rights to the matrimonial home or any other questions about division of property, please call us to book your private consultation at (416) 736-0200 or at 1-844-736-0200.

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