5 Things That Make the Matrimonial Home Unique
In Ontario, once a marriage ends the property-division provisions of the Family Law Act are triggered and property is divided essentially in equal portions between the spouses, subject to certain rules and exceptions. One of those exceptions relates to the matrimonial home.
There are several aspects that make the matrimonial home unique.
1. The “matrimonial home” is strictly defined by the Act.
The term refers to any residence that is owned and “ordinarily occupied” by the spouses and their family on the day of separation. Provided it is a family residence, this can include any type of housing including condominiums and mobile homes. Note that there can be more than one matrimonial home: as long as it meets the legislative definition, even a second home such as a frequently-used family cottage can constitute a matrimonial home which is subject to the Act’s special rules.
2. Original ownership of the home becomes irrelevant after marriage.
If a spouse brings a home with them into the marriage and that home becomes the family residence, then the law deems it to be the matrimonial home, even though that spouse held title and was the home’s registered owner prior to marriage.
3. Once a home is designated a matrimonial home, both spouses are equally entitled to possession of it upon separation.
Once the spouses separate, neither of them can legally exclude the other from the matrimonial home, no matter who owned the home prior to marriage.
4. The matrimonial home is treated differently when dividing assets on separation.
Under the Family Law Act, the full value of a matrimonial home must be shared upon separation. This forms an exception to the normal rule that applies to the division of other matrimonial property, i.e. that on separation each spouse is entitled to deduct the marriage-date value of any property he or she brought into the marriage.
5. A matrimonial home can only be sold if both spouses consent.
If one spouse attempts to sell the home without the consent of the other, then any purported purchaser will take the property subject to the legal interest of the second spouse, or the transaction may be set aside by a court in the right circumstances. This same rule applies to an attempt by one spouse to mortgage or otherwise encumber the home without the knowledge or consent of the other.
If a consensus cannot be reached, then either spouse may apply to the court for an order that the home be sold.
More information about how the law treats the matrimonial home can be found at www.russellalexander.com.