HOW IS THE MATRIMONIAL HOME DIFFERENT THAN OTHER PROPERTY?
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What Defines a Matrimonial Home?
The matrimonial home is the family home in which married spouses were living on the date of separation. The Ontario 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.19 (1) Both spouses have an equal right to possession of a matrimonial home.
There can be more than one matrimonial home. A vacation home that the parties regularly visited throughout the marriage may be also considered a matrimonial home.
Not all properties are matrimonial homes, but all interest in property owned by married couples is subject to equalization, with specific exceptions, or if exempted in a proper marriage contract.
Unmarried couples by definition cannot have a matrimonial home. As a rule, no assets are shared by unmarried couples, unless they are both on title or have a signed agreement about such sharing.
What is the Difference Between Joint Tenancy and Tenancy-in-Common?
When the ownership of property is shared, it is either a “tenancy-in-common” or “joint tenancy”. Your Transfer/Deed of Land will indicate this. For most people property is held in a joint tenancy.
Joint tenancy is where the ownership of a property remains undivided. Most importantly, the owners of a property so described have what is known as a “right of survivorship”: should one party pass away, their ownership interest in the property automatically transfers to the other party.
Tenancy-in-common is where each party (there can be more than one), has a percentage 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). Upon death, the deceased’s interest passes to a beneficiary.
Why is this important?
The type of ownership determines how the property will be divided upon the death of one of the spouses, even after separation and divorce. To protect your children’s interest in the home from a spouse who may disinherit them, the best solution is to have a tenancy-in-common, as it will allow your children to have at least half the value of the matrimonial home, by way of your last will and testament.
The way to protect against such an eventuality is to “sever title” upon separation: an inexpensive way to change title from joint tenancy to tenancy-in-common.
Don’t Have Ownership of the Matrimonial Home?
Sometimes, one spouse will solely 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 possessory right of the non-owning spouse technically ends when the marriage ends, however, this right can be reinstated by a lawyer when they draft a separation agreement or by a judge’s court order. Courts are loathe to interfere with a non-owning spouse’s possessory rights and will protect same by way of a court order.
Dealing with the protection, disposition, and possession of a matrimonial home is not always so simple. An experienced family lawyer can help.
Does Anyone Have to Leave the Matrimonial Home When You Separate?
Generally speaking, no one has to leave the home when a married couple separates, unless there is a court order or agreement to that effect. Obtaining a court order to force someone to vacate the matrimonial home is challenging, and only granted in specific cases, such as where there is family violence.
Leaving the matrimonial home can seriously affect parenting rights and child support payments. You must consult with legal counsel on this important point, as early on as possible and certainly before departing from the home.
Even if you leave the home, or your spouse gets an order for exclusive possession, this does not mean you lose your rights to the value of the home. The value of the home is calculated into the equalization of net family property when spouses separate.
What is Exclusive Possession?
Either spouse can apply to the court for exclusive possession of the matrimonial home, regardless of ownership. If you think your situation is urgent or where there is family violence, you should speak with a family lawyer to get legal advice immediately.
This court order grants a party the exclusive right to live in the matrimonial home, meaning the other party cannot reside or enter the home, whether it is an apartment or house, rented or owned. The order will usually extend to the children.
Listed under section 24(3) of the FLA are the circumstances that the court considers for such an order:
- the best interests of the children and how this decision would affect them;
- any existing orders for family property, support, or other enforceable support obligations;
- both parties’ financial situations;
- any written agreement between the parties;
- the availability of other suitable and affordable accommodation; and
- any violence committed by a spouse against the other spouse or the children.
Who Has to Pay the Expenses?
If one party is paying all the expenses for the matrimonial home, this will be taken into account later by a lawyer or the courts when determining who is in fact responsible for which expenses. One party may have to reimburse the other. The general rule is that the status quo must be maintained until otherwise determined by a lawyer by way of a separation agreement or court order.
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 rent”. This is a difficult order to obtain from the court, and depends on many factors, including where the children are residing and who is paying child support, financial difficulty of one of the parties, and who is paying the expenses. In cases where someone is residing exclusively in the home and is not paying any expenses, occupation will be adjusted for in the resolution of the matter.
Can the Matrimonial Home be Sold Without the Other Party’s Permission?
No. A spouse cannot sell or mortgage any property without the consent of the other spouse, the matrimonial home included. There are numerous protections in the legislation and documentation required for the closing of a matrimonial home sale or mortgage in order to ensure this principle is not violated. However, if a family law matter is in negotiation or litigation, a property may still be dealt with by way of sale or mortgage. The party who wishes to sell can force the sale of the home. When you sell or remortgage a matrimonial home or other residential property, you need the assistance of a competent lawyer with knowledge of real estate.
How Can a Lawyer Help?
Lawyers can help in the disposition (selling) of the matrimonial home and distribution of the proceeds, or possession of the matrimonial home following separation. If parties do not agree to sell, the party who wishes to sell must apply to the court for an forcing the sale. Generally, this is an easy order to obtain. Once the parties agree or once there is a court order in place, the house may be sold.
In the event of a sale where the payout has not yet been agreed upon, the proceeds will remain in the trust account of the vendor real estate lawyer until the parties agree upon the terms of its release, or where there is a court order.
What To Do About the Matrimonial Home When You Separate
Ontario has some very particular rules for how the matrimonial home is dealt with during separation and divorce. When calculating net family property in the equalization of assets and debts, the home is considered as having a “special status”. There are only two ways to resolve this and get to the end of your separation or divorce. They are either:
- Negotiating a comprehensive separation agreement, made as binding 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 family law forms (Financial Statement 13 or 13.1).
- 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 are an agreement drafted by the parties and filed with the court, dealing with some or all of the matters in court, reviewed by a judge and if approved, becomes a court order. 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 Minutes of Settlement, wherever possible. The template lawyers use for a separation agreement is about 165 pages; it covers all the issues and matters in separation. After editing to tailor it to your particular situation, it is often twenty to fifty pages in length, depending on your particular facts. 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 case, 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.