Common Questions about Treatment of the Matrimonial Home

The matrimonial home an important consideration in any divorce because it is a special place for all members of the family.  It is often tied to the family’s social and financial identity and provided them with security and stability. However, it causes a lot of confusion for anyone thinking about or experiencing a separation or divorce because it is often the highest-valued asset held in the marriage and it is usually the main residence of the spouses and their children. 

So, that’s where we’ll start answering some of the most common questions we get about the matrimonial home.

 Questions and answers about the matrimonial home

1.    What is a Matrimonial Home?

The Ontario Family Law Act states that “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.”

For greater clarity, to qualify as a matrimonial home, the following must apply:

a)  The couple must be married to one another;

b) It is the home or homes which the parties occupied on a regular basis as their family residence;

c) It is must be occupied as at the date of separation and therefore, could not have been previously sold; and

d) It is only necessary for one of the parties to have an interest in the home.

2.   Do I Have a Matrimonial Home if I am Living in a Common-Law Relationship?

No.  The definition of spouse for the purpose of the matrimonial home only applies to married spouses.

3.   Can There Be More Than One Matrimonial Home?

Yes.  For most couples, there is only one matrimonial home and it is their main place of residence. However, there can be other matrimonial homes too, including vacation properties such as cottages, where the spouses spend a significant amount of time, even though it isn’t their main residence.

4.   My Spouse and I Own the Matrimonial Home Jointly, What Happens if One of Us Should Die During Separation?

If a matrimonial home is owned jointly between the parties, there is a right of survivorship.  Therefore, if one spouse should die before they resolve their division of assets, the home automatically becomes owned by the other joint owner.  Therefore, spouses should consider unilaterally severing the title from joint-tenancy to tenancy-in-common promptly upon the separation to ensure that their registered interests fall to their respective estates upon an unexpected death.

5.   Do I Own One-half of the Matrimonial Home Even if it is in My Spouse’s Sole Name?

 How the home is split between spouses in property division

No.  The matrimonial home is owned by the spouse in whose name it is registered.  If a spouse seeks to claim that he or she has beneficial ownership in the matrimonial home, then that spouse will have to make a claim that the registered spouse holds the home, in whole or in part, in trust for the non-registered spouse.

It is common that the spouses choose to register the home solely in the name of one of them, but they have the intention that the home will always be shared equally between them.  However, some spouses intend that the other spouse will never have ownership rights towards the home. If the spouses feel strongly about these issues and wish to have their intentions upheld by the Court, then it is important for them to enter into a marriage contract prior to or during their marriage after receiving independent legal advice which states their intentions.  At Williams Family Lawyers, we can also assist you in the preparation of marriage contracts.  

6.   How is the Matrimonial Home Divided in Property Division?

In a separation or divorce, most property is divided using a relatively simple formula. Each spouse’s NET FAMILY PROPERTY is calculated as follows:

  • First, ADD the value of all of the assets and liabilities held as at the date of separation;
  • Second, DEDUCT the value of most of the property each spouse brought into the marriage on the date of marriage;
  • Third, EXCLUDE inheritances and gifts received by one spouse during the marriage, but that remained exclusively the property of the recipient and that can be traced into property that is still in existence as at the date of separation.

Each spouse’s Net Family Property is compared and the spouse with the higher Net Family Property amount pays the other an EQUALIZATION PAYMENT so that each of them has the same amount at the end of the marriage.   

There are major and controversial EXCEPTIONS TO THE RULE regarding the treatment of the matrimonial home in the division of property as follows:

  • Even if it was owned by one spouse before the marriage, the full value of the home is included in that spouse’s Net Family Property and is shared equally between the spouses in property division. Therefore, the spouse who owned the home before the marriage cannot deduct the value of the home as at the date of the marriage from the total amount of the spouse’s property held at the date of separation and to be shared equally between the spouses.
  • Also, if the matrimonial home was gifted or inherited by a spouse during the marriage, it is not excluded by the exemption of gifts and inheritances mentioned above and is considered common property to be shared equally between the spouses.

If the spouses determine that they do not wish the law relating to the equalization of the matrimonial home to apply to them, then it is important for them to enter into a marriage contract prior to or during their marriage after receiving independent legal advice.  At Williams Family Lawyers, we can also assist you in the preparation of marriage contracts.   

7.   Can I Be Forced to Move Out of the Matrimonial Home or Can I Force My Spouse to Move Out? 

No.  Upon a separation, each party is deemed to be able to enter or occupy the matrimonial home regardless of ownership and neither may exclude the other without a COURT ORDER FOR EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME.

During separation or divorce proceedings, either spouse may apply for an Order for exclusive possession of the matrimonial home.  If an application for exclusive possession is made, the Family Court will base its decision to award exclusive possession on a number of factors. These Orders are not readily made and mere arguing, conflict or stress experienced between the spouses will be insufficient for the Court to grant an Order.  Most important for the Court are the stability and best interests of any minor children residing in the home and any violence that has been committed by one spouse against the other or the children. In addition, the Court will consider the financial position of both spouses and ability of both spouses to find suitable alternate accommodations.

It’s important to note that even if one spouse owned the matrimonial home before marriage, and continues to own the home after the divorce, that spouse may not necessarily be given exclusive possession of the home.

8.    Can I Force My Spouse to Transfer the Matrimonial Home to Me? Do I Have the Right of First Refusal to Buyout the Matrimonial Home?

No. If the matrimonial home is registered to both spouses, there is no law that allows a spouse’s right of first refusal to buyout the other spouse’s interest in the matrimonial home. 

Therefore, if the spouses cannot agree on the value of the home for it to be transferred to the other, then one spouse may apply for the partition and sale of the home. If the application is accepted by the Court, it will order that the house be sold and the proceeds of the sale be shared between the spouses in accordance with their registered shares. If one spouse wants to keep the home after the Court has ordered that it be sold, that spouse must place an offer on the home the same way any other potential buyer would do.

As with all matters pertaining to a divorce, the individual circumstances of each case can and will affect the outcome. To find out more, you are welcome to schedule a consultation with a Williams Family Lawyers representative.

Williams Family Lawyers