The Matrimonial Home
For the average couple a home is likely the largest asset they own. Not only is a home a source of financial security (and even a part of their retirement strategy), it is also the main shelter for the couple and their family. That is why in Ontario the matrimonial home is treated very differently than other property. Spouses are given very special rights in relation to the matrimonial home.
To understand how the matrimonial home fits into the larger picture of divorce and separation, this article will focus on some key issues with respect to the matrimonial home. The matrimonial home impacts a wide range of issues in divorce and separation, and can have implications for child custody, division of property, child support, spousal support, negotiations and the divorce process.
What is a Matrimonial Home?
To begin with, there is a misunderstanding among the general public that a matrimonial home is a home that both spouses ‘own’. This is not true. The definition of a ‘matrimonial home’ in Ontario is quite broad. Under section 18(1) of the Family Law Act, the matrimonial home is “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”.
This may seem to be a mouthful. However, what this essentially means is that if you were ordinarily residing at a property at the time of separation, and either of you have an interest in it, that property is considered the matrimonial home. So, based on this definition even a property that you lease or rent is considered a matrimonial home, so long as you and your spouse ordinarily reside in it. It does not matter who actually owns the property. For example, if your spouse has a lease agreement for a unit in an apartment building and you reside there with him or her, this would be considered your matrimonial home.
In addition, because the definition of a matrimonial home states ‘every property’, this implies that there may be numerous matrimonial homes. For example, if you or your spouse own a cottage and you ordinarily reside at the cottage during the summer, this could be considered to fall under the definition of a matrimonial home.
Rights of Possession
One of the most important rights spouses have with respect to the matrimonial home is that of an equal right of possession. What this means in practical terms is that, generally, neither spouse can remove the other spouse from the matrimonial home, even if they have separated. It does not matter who actually owns the property. Where only one spouse is on title to the home, the other spouse’s right of possession ends when they cease to be spouses (when they divorce), unless a separation agreement or court decides otherwise.
Treatment of the Matrimonial Home with respect to Division of Property
The treatment of the matrimonial home with respect to the division of property is significant. Generally, calculating net family property requires deducting the value of the property on the marriage date from the value of property owned as of the date of separation date.
However, for the purposes of this calculation, if the matrimonial home was owned by one spouse prior to marriage and is owned on the separation date by one spouse, its value on the marriage date from its value on the separation date is not deducted. Instead, the entire value, or equity, is included for the purposes of the net family property calculation. This may have a significant impact on calculation of the equalization payment.
Ownership of the Matrimonial Home
As noted above, where ownership of the matrimonial home is in one spouse’s name, the impact on the net family property calculation can be significant. However, there are even issues relating to the matrimonial home where the matrimonial home is owned by both spouses.
A common issue that arises in scenarios in joint ownership is a spouse who wants to sell the property while another spouse opposes such a sale. In such a case, permission from the court is required to force the sale of the home. In such a case, legal advice is highly advised in order to understand your rights and obligations relating to the potential sale of your property.
Furthermore, there are additional ways in which to deal with joint ownership scenarios. A common method is that of one spouse purchasing the other spouse’s interest in the jointly owned property. However, in order to ensure a smooth transition and keep such an arrangement enforceable, a separation agreement is often required.
Other issues relating to the Matrimonial Home
In addition to the above, there are other ways in which the matrimonial home may have an impact on divorce and separation issues.
Custody of children can become relevant with respect to the matrimonial home in situations where a spouse leaves the home or where exclusive possession of the matrimonial home is granted to a spouse by the courts. In such a scenario, a court may favour awarding custody of the children to the spouse who remained in the matrimonial home with the children on grounds of maintain the status quo.
Another common issue that arises with respect to the matrimonial home is when only one spouse owns the home but wants to deal with it in a certain manner. For example, lease it out, place a mortgage on it or even sell the home. In such cases, because the property is the matrimonial home, consent is required from the spouse who does not own the home. When couples separate, the spouse who owns the home can be restricted from dealing with property they own in their name.
Criminal charges can even have significant consequences on the rights of possession that the spouse has with respect to the matrimonial home. For example, in cases involving domestic violence, a court has the power to award exclusive possession of the matrimonial home to the abused spouse – even if the home is only in the accused’s name.
For more information on the matrimonial home during a separation or divorce, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Helpful Resources:
Divorce and Separation
Family Justice Services
Child Custody and Access
Spousal Support
Child Support
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments
Child Protection
Child Adoption
