Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff Li or a family lawyer if you are concerned about your family law issues.
Whenever contemplating marriage, divorce or separation, one should pay special attention to the matrimonial home. In family law, the matrimonial home has several unique features, which make it worthy of some thought.
What is a matrimonial home? Ontario’s Family Law Act provides a strict definition, which refers to “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”. The family residence may include any type of housing, including condominiums, mobile homes and leased properties. It is possible that there is more than one matrimonial home, as long as it meets the legislative definition. However, one or both spouses may also designate only one matrimonial home, which could somewhat simplify the issues to be dealt with in a divorce or separation process. Note that a matrimonial home only applies to married couples. Common law spouses do not have a “matrimonial home” regardless of how long they have lived together.
Once a property becomes a matrimonial home, the original ownership of the home becomes largely irrelevant. Upon separation, both spouses are equally entitled to stay in the matrimonial residence. Neither spouse can legally exclude the other from the matrimonial home without court intervention, regardless of who owned the home prior to marriage.
If a spouse wants to live in the matrimonial home without the other spouse, the only way is to go to the court and apply for an order of exclusive possession. However, such an order is not easy to get. Usually a judge must be satisfied that exclusive possession is in the best interests of the children, or that a spouse’s presence in the home will put other families’ safety in danger.
Special rules also apply to the matrimonial home when couples divide their family property. Unlike other assets, the full value of the matrimonial home must be shared upon separation. While a spouse may deduct the date-of-marriage value of other properties he or she brought into the marriage in calculating the equalization payment, no such deduction is allowed for the matrimonial home.
A spouse is normally not able to sell the matrimonial home without the other’s consent; nor can a spouse mortgage or otherwise encumber the matrimonial home without the knowledge or consent of the other. All such transactions without the other spouse’s consent, if they do occur, may be set aside by a court in proper circumstances.
If a consensus cannot be reached with respect to the matrimonial home upon divorce, the home will usually be sold, subject to any children’s best interests. Either spouse may apply to the court for an order specifying the terms of the sale and the division of proceeds.
If you do not like these features of the matrimonial home, you may wish to make a marriage contract before or during the marriage. If signed before the marriage, more often it is called a “prenuptial” agreement. The court will consider such a contract when family property is divided. However, any provisions in the contract with respect to a spouse’s right to possession of the matrimonial home are unenforceable. Needless to say, you should always consult a family lawyer for your rights and obligations with respect to your matrimonial home and how you may deal with it.
Copyright: Jeff Jiehui Li
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