By: Analena Mandlsohn

Divorce and the Matrimonial Home - What Happens to Your Home When You Get Divorced

Tags: Divorce & the Matrimonial Home, Divorce, Matrimonial Home

While you are enjoying a happy marriage, the definition of what constitutes the matrimonial home is of little significance; it’s on the dissolution of your marriage that the definition is of crucial importance, since the matrimonial home is given special treatment when it comes to the division of property upon divorce. There are specific rules regulating how the matrimonial home is to be treated within the divorce process.

So what exactly is the “matrimonial home”?
Section 18 (1) of the Family Law Act of 1990defines the Matrimonial Home as “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…”  R.S.O. 1990, c. F.3, s. 18 (1).
In layman’s terms, this means that any property, be it a detached house, condo, cottage, boathouse etc. that you and your spouse used during your marriage and up to the time of your separation as your family dwelling is the matrimonial home. 
Note that the definition does not preclude you from having more than one matrimonial home, since it states “everyproperty” that you have an interest in. So, for example if in addition to your primary residence, you have a cottage that you and your spouse spend every weekend or the duration of the summer at, that cottage could very well be considered a matrimonial home, even though it may not be the home that you both ordinarily resided in.

What about property that was bought prior to marriage?
If you had purchased a house before you got married and after the marriage your spouse moves in with you, this house is treated as the matrimonial home if at the time of dissolution of the marriage, this was the home that you both ordinarily resided in. In other words, the original ownership of the home becomes irrelevant.
If, on the other hand, you had bought an investment property prior to marriage, that you leased out and never resided in with your spouse, then that property would not be considered a matrimonial home. 
 
What about property that was your primary residence during the marriage, but was no longer being used as such at the time of separation?
If, for example, you retire and move to your cottage with your spouse and rent out your previous matrimonial home, then said home would lose its designation as the matrimonial home, since you no longer ordinarily reside there.  Upon dissolution of the marriage, the previous matrimonial home would be treated simply as any other asset for the purpose of division of property.
 
How is the matrimonial home treated during division of property?
Upon dissolution of the marriage, unlike certain assets such as gifts or inheritances that you may receive during the marriage and which are typically exempt from property division, the entire value of the matrimonial home is added to the net family property to be divided equally between you and your spouse. Moreover, if gifts or inheritances were used as a down payment or to pay off a mortgage on a matrimonial home, or even improve a matrimonial home for example, then the exemption would no longer apply. Similarly, if you inherit a house and subsequently move into the house with your spouse, then the house becomes the matrimonial home and the entire value of the inherited house is added to the net family property for the purposes of property division. 

Can you force your spouse to leave the matrimonial home?
During the marriage, spouses have an equal right to possession of the matrimonial home and have an equal right to stay in the home.  Neither of you can unilaterally exclude the other from the matrimonial home, even if the home is not owned jointly by both of you and only one of you is on title. Similarly, neither of you can sell, mortgage, or rent the home without the other’s permission, unless there is a court order or separation agreement to the contrary.   
You may apply to the court for exclusive possession of the matrimonial under certain circumstances, including but not limited to situations where you are a victim of domestic violence, or where exclusive possession would be in the best interests of any children affected.

If I voluntarily move out of the matrimonial home, do I lose the right to an equal share in the value of the home? 
The simple answer is “No”, but in reality, it’s not that cut and dried, and legal advice should be sought if you’re considering moving out. While leaving the matrimonial home does not deprive you of your rights, unless remaining in the home is detrimental to your own or your children’s safety and welfare, it is inadvisable to move out. If there are children involved, then it’s preferable toremain in the matrimonial home with your children, until a temporary custody and access arrangement is agreed upon, or you may inadvertently create a new status quo with respect to parenting arrangements and custody. In a custody battle, your spouse may allege that you abandoned your children and are not entitled to custody. Leaving the matrimonial home may impact your ability to gain custody of your children or possession of the home. Similarly, you should also not allow your spouse to move out with your children without your permission.
 
What if I want to sell the matrimonial home, but my spouse doesn’t?
If you want to sell and cannot reach agreement with your spouse, youmay apply to court for an order of partition and sale. Under no circumstances, should you attempt to sell without the consent of your spouse, as the transaction may be invalidated by a court. 

If a court grants my spouse the right to sell, do I have the right to purchase the home before anyone else?
If a court grants your spouse an order of sale, you do not automatically have the right to purchase the home (or what is known as “the right of first refusal”) and you must bid on the open market with any other interested buyers.
 
What if we both want to sell the matrimonial home, but can’t agree on a Realtor®or brokerage?
If you cannot reach agreement as to which Realtor or real estate brokerage you will list your home with, it is possible to have two different realtors and/or brokerages represent you in the sale. This is known as a co-listing agreement and is quite commonly used when a matrimonial home is being sold in the course of a divorce proceeding.
 
If you decide to list with two separate Realtors and/or brokerages, it is important that any listing agreement you sign clearly states the TOTAL commission you have agreed to pay and what percentage of that commission will be paid to a Realtor or brokerage that represents the buyer in the transaction. Given that both listing Realtors will have to split the portion of the listing commission between them, you have to ask yourself how motivated they will be to sell your home and what expenses they will be willing to incur in marketing your home. My advice would be to choose an impartial Realtor that is neither a family member nor close friend, so that neither of you feels the other’s interests are being favoured.
 
My partner and I are in a common law relationship and we are separating. Do we both have equal rights to the matrimonial home?
Unlike married couples, common-law partners DO NOT have equal rights to the matrimonial home. The matrimonial home refers to a home that is shared by a married couple – it does not refer to any house or property that is shared by common law couples, and such property belongs to the partner who purchased it and whose name is on title. If however, the property was purchased jointly by both partners, or if one partner contributed substantially to the purchase, maintenance and upkeep of the property, then said partner will definitely have a claim in the first instance, since he/she will also be on title, and may even have a claim in the second instance, albeit a hard one to prove.
 
Can I force my common law partner to leave the home, since I’m the only one on title?
If you hold title to the property, you have a legal right to evict your common-law partner if your relationship breaks down. However, unless your safety and welfare are at stake, it is not recommended that you do so. If your partner were to apply for spousal support, your conduct in evicting him/her may influence the court’s award of spousal support, as courts generally do not look kindly on such action. I would highly recommend that you seek legal advice before taking any action with regard to evicting your common law spouse.
 
In conclusion, whether it’s the family or matrimonial home you shared as a common law couple or married couple respectively, it probably means so much more to you than just a dwelling – it’s the property you inhabited when you shared a loving relationship, the home you once created memories in and or raised your children in, and it’s usually the most significant asset that you possess – and as such, it is usually one of the biggest points of contention between separating couples.  While emotions run high and sentiments are frail, it’s not unusual for you to disagree as to how it should be dealt with. It is therefore imperative that you seek professional advice in an effort to resolve any dispute as amicably and as quickly as possible, so that both of you can move on with your lives and commence your journey towards healing.  
  
* This blog post does not provide legal advice nor is it a replacement for legal advice – it is intended for general informational purposes only and you should consult your lawyer regarding your options, rights and obligations.