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The Matrimonial Home

Family Lawyers Advising on the Matrimonial Home

For most couples, the matrimonial home represents the largest asset they jointly own, and has deep emotional resonance as the place where a marriage began, the place where children have grown up, and the place where memories are collected. Unsurprisingly, the matrimonial home and what becomes of it after a separation or divorce often become a point of contention, even for couples whose separation is otherwise amicable.

At Gelman & Associates, our knowledgeable family lawyers have decades of collective experience advising clients on division of property issues, including proactively and strategically guiding clients on what to do with the matrimonial home. We advocate for the optimal outcome for our clients, and are not afraid to get tough when needed.

How is the Matrimonial Home defined?

Section 18(1) of the Family Law Act defines a matrimonial home as any property in which either spouse has an interest and which is currently, or was at the time of separation, “ordinarily occupied by the person and his or her spouse as their family residence.”

Under the definition of “matrimonial home” in the Family Law Act, more than one home can be considered the matrimonial home, provided it was regularly being used by both spouses at the time of separation.  For example, if both spouses spent every weekend at the cottage together, it could be considered the matrimonial home.  Conversely, if the couple owned a condo that was almost exclusively used by one spouse only, it would likely not be considered part of the matrimonial home.

Can my spouse “kick me out” (or vice versa)?

Everyone has heard the horror stories about a spouse coming home one day to find all their things on the front lawn and the locks on the doors changed.  This is not an approach any separating couple should contemplate, nor is it a legally reasonable or permissible approach for a spouse to take.  Barring a court order or agreement between the parties, both parties have a right to equal possession of the matrimonial home; even if the home is only in one spouse’s name.

Matrimonial Myths Matrimonial Facts
  • If the house or other assets are held in the sole name of one party, they do not form part of the matrimonial pot.
  • A fair division of the assets is achieved by a standard calculation.
  • All claims will not be lost if the matrimonial home is vacated.
  • Divorce automatically means financial freedom from your ex-spouse.
  • Rights of cohabitees on relationship breakdown are very limited and different from those rights of married couples.
  • All assets are assumed to form part of the matrimonial pot unless the court decides otherwise or this is agreed by the other party.
  • Leaving the matrimonial home has no impact on your ability to make financial claims.
  • You may be subject to claims made by them in respect of income, pension and capital.

How does the Matrimonial Home affect custody issues?

If there is an anticipated custody battle, a spouse should think twice before leaving the matrimonial home.  When considering custody, the courts will always act in the best interest of the child.  In many cases, it will be considered least disruptive (and therefore most beneficial) for children to remain in the matrimonial home.  In such cases, leaving the home may weaken the argument for custody of the children.  Unless a separation agreement is in place and custody issues have been settled, it is advisable to remain in the matrimonial home if custody of your children is desired.

Experienced Divorce Lawyers Representing Clients with Contentious Matrimonial Home Issues in Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough.

In addition to being a significant asset, the matrimonial home is usually associated with deep emotional ties.  At Gelman & Associates, we will provide compassionate, forward-thinking guidance to our clients while aggressively pursuing their legal interests. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online.

Frequently Asked Questions

The best way to protect your business during a divorce is to designate it as separate property in a prenuptial agreement. Your pre-nuptial agreement will serve as a protection because it ensures that your business is still a separate entity no matter how much your spouse contributes.

No, a limited company is not protected from divorce. Business assets such as shares in a limited company, assets owned as a sole trader, or an interest in a partnership can be considered part of your divorce financial proceedings.

Yes, a business is considered marital property, especially if acquired during the marriage and with joint funds. If this is the case, then its value should be shared by the couple equally upon divorce.

When you separate or divorce, you could be forced to share the inheritance with your spouse if you are not careful with what you do with it. As long as you received your inheritance during the marriage, you can exclude the value of the inheritance you left on the date of separation from your net family property.

If you are legally divorced, then most likely, the division of all of your assets and debts occurred at the time of divorce, your ex spouse would have no right to property acquired after the divorce, including inherited money or personal property received after the divorce.

Future inheritances are not taken into account when dealing with the financial aspects of a divorce, but if it is expected that the person making the bequest will die in the near future, and if the inheritance is likely to be substantial, it may be.

Yes you can. What you can do now is for you and your wife to designate the second home as the matrimonial home, and register it as matrimonial home before the land registry office. After doing so, the first home that you purchased using your inherited money will no longer be considered a matrimonial home. In this case, you can now exclude the amount you paid to purchase the first home from the net family assets.

No. You cannot exclude an inherited property that was already used and no longer existing at the time of separation.

Still have family law questions?

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If you need legal advice regarding property division matters in Ontario, contact our Toronto family law lawyers for a free consultation. Some conditions may apply.

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