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Divorce is a part of life in the 21st century.  In fact, 1 in 5 Canadians reported that their parents are divorced or separated.  Divorce is so common in today’s world that a fair and common-sense approach to the divorce process that includes providing for support, creating a parenting plan, as well as the division of assets, such as the marital home, benefits not only married couples, but society as a whole.  This article aims to provide some guidance on what to do with the matrimonial home when you are going through a separation or divorce

Married Couples vs. Common Law Couples

There is a big difference between a marriage and a common-law relationship when it comes to the division of property when those relationships end.  The difference stems, in part, from the fact that the Family Law Act provides a paradigm for the division of assets in a marriage that aims to ensure both spouses receive an equal benefit from the marriage. In contrast, a common-law relationship provides the partners with no such statutory protections.  Instead, if a person wants to make a claim for property in a common-law relationship, they will need to make a time-consuming and expensive constructive trust or unjust enrichment argument in court. 

When it comes to the matrimonial home (the home where married parties resided together before separation), the Family Law Act provides that each spouse has an equal right to possession of the matrimonial home regardless of who the owner is. Marriage puts restrictions on a spouse’s ability to alienate the matrimonial home even if they are the sole titleholder. A common-law spouse will enjoy no such protections and will, similar to with other types of property, have to make a constructive trust or unjust enrichment claim against the home if they are not the legal owner. 

Rights of Married Couples

Married couples have certain rights to the matrimonial home. Each spouse has an equal right to stay in the home as well as a right to a share in the value of the home as part of a division of property.  Each spouse’s right to stay in the home is not about legal ownership, but rather about who is entitled to reside in the home.  This may be referred to as the “right to possession” of the home.  This affords protection to a spouse who may not be the owner of the property, or if the marital home is a rental, whose name may not appear on the lease agreement. 

The right to remain in the home for each spouse lasts until either there is a separation agreement or court order that says one of you can no longer reside there, the matrimonial home is sold or the lease ends, or you have divorced (obtained a Divorce Order from the Court). If you have divorced and you are not the legal owner or renter of the property, you are no longer defined as a “spouse” under the Family Law Act with an equal right to live in the marital home. This is why it is so important to have a written separation agreement or court order dictating what will be done with the marital home.  

It should be noted that if one spouse decides to move out, that person has not forfeited their right to ownership of the marital home or to receive their share of the value of the home. 

Keeping the Home

If you choose to continue to occupy your home after separating, you will likely need to pay your spouse for their share of the value of your home.  Since the matrimonial home is sometimes a family’s largest asset; this may require that you re-mortgage the home to pay your spouse a lump sum.  This will require that you qualify for the mortgage on your own.  Your mortgage lender may ask for information about your separation agreement, the amount of child support payments, and the amount of spousal support payments to ensure that you will be able to afford to make the mortgage payments. 

Selling the Home

If you choose to sell the home, you will need written permission from your spouse or a court order directing you to do so.

Rights of Common Law Couples

Unfortunately, when a common-law couple separates, the partners do not have an equal right to stay in the family home.  The general rule will be that each partner will retain the property they brought into the relationship.  This means that if only one partner was the legal owner or renter of the family home, the other partner has no right to occupy the home and generally will have no right to benefit from its value if the house were to be sold.   If, however, both of your names are on the title to the home, you would either need to sell the home and split the proceeds, or one partner would need to buy the other out.

If you are not the legal owner of the property, you will need to negotiate with your partner a written agreement or obtain a court order that lets you continue to occupy the property.  

Advantages of Living Apart

When you and your partner have decided to divorce, the next logical step is to physically separate by having one partner move out of the matrimonial home.  There are many advantages to living apart during the separation phase of your divorce.  The primary reason for one spouse to move out is that it will demonstrate a clear beginning to your one-year separation period if you are using separation as the grounds for your divorce.

Living apart will also make conflicts less likely to arise, as you are no longer working together to manage the day-to-day details of your lives.  Living apart will also make emotional separation easier as you will be able to begin your new life without your spouse.  

Disadvantages of Living Apart

Living apart during your separation is the logical thing to do for many couples. However, there are some practical disadvantages to doing so that cause some couples to choose to continue living together.  Reasons couples may choose to continue living together in the matrimonial home include:

  1. Finding a New Home – Living apart will require one of them to find another place to live.  This requires searching for a new home, qualifying for a lease or a new mortgage and going through the process of moving their belongings to a new home. 
  2. Lifestyle Overhaul – When a couple decides to live separately, they will now have the same amount of income to support not just one, but two households.  In many cases, this will require a change to your lifestyle.  You both may have to cut back your spending in other areas to make up for the difference.  You also may need to pay for services that were previously being provided by your partner such as landscaping costs or cleaning services. 
  3. Being Apart From Your Children – When one spouse moves out of the matrimonial home, there will naturally be some period of time where each parent is apart from their children, as the children can only physically be present in one home at a time. 

Settling Your Affairs With a Separation Agreement

A separation agreement is a written agreement and legal contract between a couple outlining the terms of their separation.  It may include details about your living arrangements, how your assets will be divided, the amount of any spousal support or child support, as well as a parenting plan that includes decisions surrounding parenting time and decision-making authority for your children. 

Dealing With New Living Arrangements During a Separation

If you are contemplating separation or divorce, call the law office of Gelman & Associates for information about the divorce process.  An experienced divorce lawyer can provide you with legal advice regarding your right to either continue to live in the matrimonial home or to be bought out by your spouse.

If you need a skilled and experienced family lawyer that specializes in separation and divorce, call Gelman & Associates today.

FAQs on Deciding Whom Will Move Out When You Separate

Most couples who separate eventually go on to divorce. In very few cases, there are religious or financial considerations that cause them to remain separated indefinitely, but divorce will provide closure to the end of a marriage.

A separation agreement is an important tool that will allow you and your spouse to memorialize your decisions regarding your parenting plan, support payments, and property division, including what you have chosen to do with the matrimonial home.

Deciding whether to live separately is unique to every couple.  While living apart may prove simpler for a separating couple emotionally, the financial and practical consequences of doing so may prevent some couples from making the move.

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