How is the Matrimonial Home Different than Other Property?

30 Sep

Read Time: 8 Min.

How is the Matrimonial Home Different than Other Property?

What is the Matrimonial Home?

The matrimonial home is the name given to the family home, where the spouses lived at the date of separation. More specifically, the Family Law Act (FLA) defines the matrimonial home as:

18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

And additionally,

19 (1) Both spouses have an equal right to possession of a matrimonial home.

There can be more than one matrimonial home in a relationship, and the significant use of a vacation home or cottage that the parties had regularly visited throughout their relationship may be considered as a matrimonial home.

Not all properties are matrimonial homes, but even if they are not, they are still subject to equalization. One more note about figuring out if a property is a matrimonial home: couples who are not married do not have a matrimonial home. As a rule, no assets are shared unless married or agreed upon in a contract.

What to do About the Matrimonial Home When You Separate

While both spouses have an equal right to possess the matrimonial home, and possession is not the same as ownership. When the ownership of the matrimonial home, property, or land is shared, it is called a “tenancy in common” or “joint ownership.”

A tenancy in common means that both parties, (or if there is more than one, all parties), are considered as having a total 100% interest in the property. Each party can have a different percentage of the property or interest can be equal (like spouses each having 50% of the matrimonial home).

A joint tenancy means that the shared ownership of the property is undivided.

Why is this important?
These types of ownership determine how the property will be divided upon the death of one of the spouses, even after separation. It is in the best interests of the children to have a tenancy in common, as it will allow them to have at least some of the value of the matrimonial home, whereas a joint tenancy means that the value of the property will go entirely to the other spouse.

What if You Don’t Have Ownership of the Matrimonial Home?

Sometimes, one spouse will own the matrimonial home. In these cases, the other spouse still has a right to possess the matrimonial home under section 19(2) of the FLA. This personal right of the non-owning spouse usually ends when the marriage ends, however a comprehensive separation agreement or court order can reassert this right.

It’s not always so simple to deal with the disposition and possession of a matrimonial home. An experienced family lawyer can help you determine which properties you have might be considered matrimonial homes.

Does Anyone Have to Leave the Matrimonial Home When You Separate?

Usually, when parties separate, one of the parties will move out of the matrimonial home.

However, and generally speaking, nobody has to leave the house unless there’s a court order or agreement to do so. Obtaining a court order to vacate the matrimonial home, is challenging, to say the least.

In the absence of compelling reasons for a court order that one party have exclusive possession of the home, both parties can continue to reside in the home unless they agreed to do otherwise, or the matter is finished by way of a comprehensive agreement or a court order. 

Leaving the matrimonial home can affect parenting rights and child support payments.

Even if you leave the house, or your spouse gets an order for exclusive possession, this does not mean that you lose your rights to the value of the home. The value of the home figures into the equalization of net family property when spouses separate.

What is Exclusive Possession?

Either spouse can apply to the courts to have exclusive possession of the home, regardless of ownership. If you think your situation is urgent, you should talk with a family lawyer to get legal advice right away. For example, in such an event where there is violence, a spouse may be able to obtain an order for exclusive possession.

This court order grants the party to be able to live in the matrimonial home whether it is an apartment, house; rented or owned. The other party is not allowed on the property. The order will usually extend to the children as well, allowing them to live in the matrimonial home.

Listed under section 24(3) of the FLA, are the other circumstances that the court considers for such an order of exclusive possession:

  1. the best interests of the children and how this decision would affect them;
  2. any pre-existing orders for family property, support, or other enforceable support obligations.
  3. both parties’ financial situations;
  4. any written agreement between the parties;
  5. the availability of other suitable and affordable accommodations; and
  6. any violence committed by a spouse against the other spouse or the children.

Can the Other Person Get Stuck with All the Expenses?

If one party gets stuck with all the expenses, this will be taken into account when determining who is in fact responsible for which expenses. One party may have to reimburse the other.

Depending on the situation, the party who remains in the house, whether or not they are paying the expenses, may be liable for what’s called “occupation rents.” This depends on many factors, including where the children are residing and who is paying support, financial difficulty of the other party, and who is paying the expenses.

Can the Matrimonial Home be Sold Without the Other Party’s Permission?

A spouse cannot sell a home on their own and require the consent of the other spouse. There are numerous protections in the legislation and the documentation required for closing of a matrimonial home to make sure that this principle is not violated. When you sell or remortgage a matrimonial home or other residential property, you need the assistance of a real estate lawyer.

If a family law matter is in negotiation or litigation, a property may still be dealt with by way of sale or mortgage. In the event of a sale, the proceeds would remain in the trust account of the real estate lawyer until the parties agree upon the terms of its release, or if the court orders release.

How Can a Lawyer Help?

Lawyers can help in determining the disposition (selling of the matrimonial home and selling of the proceeds) or possession of the matrimonial home in the divorce or separation. If the parties agree to sell the home, it’s not a big deal. If they do not agree, the party who wishes to sell must apply to the court for an order permitting them to do so. Once the parties agree or once there is a court order in place, the house may be sold.

Divorce is the dissolution of a martial relationship. It is just a piece of paper saying you are not married anymore.

Separation is everything else: custody, access, child support, spousal support, equalisation of net family property, and many other issues, including the possession of the matrimonial home. The most important part of the separation and divorce is the separation.

There are only two ways to get to the end of your separation or divorce. They are either:

  1. By a comprehensive separation agreement, negotiated between the parties in good faith, made as bulletproof as possible by each party having independent legal advice, with both parties’ certificates of independent legal advice attached to the certificate. Full and frank financial disclosure made under oath, using the appropriate legislative family law forms (Financial Statement 14 or 14.1).
  2. By way of a court order, following a trial (or Minutes of Settlement made in the course of the proceeding of the trial). Minutes of Settlement is an agreement drafted by the parties, which deals with some or all of the matters in court, putting them to bed. We strongly recommend if a matter is in court and you are seeking to resolve it, it is preferable to enter into a comprehensive separation agreement, rather than a Minutes of Settlement wherever possible. The outline lawyers must follow for a separation agreement is 165 pages, meaning it covers nearly all the potential issues and matters in a separation. Of course, you don’t have to go through all those pages yourself! As family lawyers, that’s what we’re here for.

If you have more questions or are wondering how the matrimonial home should be dealt with in your specific situation, feel free to contact Stephen Durbin and Associates today to schedule an initial consultation. 

Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel.