Area of Law: Family Law
Answer Number: 111
What happens to the matrimonial home?Region: Ontario Answer Number: 111
What is a matrimonial home?
The matrimonial home is the legal term used to describe the family home in which the spouses were living just prior to the date of separation. If you and your spouse regularly use more than one home together, then each home can be considered to be a matrimonial home. An additional matrimonial home, therefore, can include a cottage or chalet, or simply another home in another location.
Special rules for the matrimonial home
Unless spouses have a marriage contract setting out what happens to the matrimonial home upon marriage breakdown, the special rules set out in the Family Law Act apply. Regardless of whose name the deed is in, each spouse is regarded as having an equal interest in the matrimonial home. If the spouses owned more than one matrimonial home, the value of each of these homes must be allocated equally to each spouse as of the time of separation.
The rules set in the Act are particularly significant if one spouse owned the home before the marriage and it continues to be a matrimonial home at the time of separation. Even where one spouse owned the matrimonial home before the marriage, the entire value of the home has to be divided with the other spouse upon separation. Consequently, the spouse who owned the home before the marriage is not entitled to keep, or get credit for, the value of the home calculated at the time of the marriage. This is not the case with most other types of property, where a value is credited to the spouse who owned it prior to the time of marriage, based on its value at the date of marriage.
Exclusive possession of matrimonial home
When a relationship breaks down, it is common for one spouse to move out of the family home. However, in cases where neither spouse is willing to leave, it may still be possible to apply to the court to live in the family home without your spouse. Obtaining an order that would require your spouse to live somewhere else is called “an order for exclusive possession” and is mainly used for spouses who are experiencing abusive situations. You can make an application for exclusive possession even if you are not the one who owns the home, or the person named on the lease.
Exclusive possession orders, as the name suggests, precludes the other spouse from entering onto the matrimonial property. An order can be obtained for most types of property including houses, condominiums and apartments. These orders do not decide who owns the property, or who has rights under a lease. Being excluded from the matrimonial home does not affect your ownership rights. However, if the matrimonial home is subject to a lease, there may be other legal requirements that must be addressed.
In most cases, children are allowed to live in the matrimonial home and this will be stated in the order. Exclusive possession orders are usually temporary, and intended to apply until the couple has entered into a legally binding separation agreement.
To obtain an order for exclusive possession, an application must be made to the family court. In making a decision, the court will consider many factors, including:
1. The best interests of the children:
- safety of the children
- the effect that a move might have on them
- their ties to the neighbourhood and local school
- how long they have lived there
- extra-curricular activities or studies in the area
2. Violence committed by one spouse against the other spouse or the children
3. The financial situation of both spouses
4. Written agreements made between the spouses
5. Alternative housing options for both spouses
Orders for exclusive possession usually apply to spouses who were legally married. If you are in a common-law relationship, it may be more difficult to obtain an order for exclusive possession if your name is not on the deed or lease.
It is important to understand your rights and responsibilities when you separate or divorce. Each spouse should acquire independent legal advice. In fact, agreements reached without independent legal advice may not be legally binding.
For more information, contact the Ministry of the Attorney General.
For legal advice and assistance regarding separation, divorce and other family law matters, contact our preferred Family Law Firms and see who’s right for you.
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