Have you ever wondered what happens to the family home when couples are going through a divorce? The legal term for the family home that a married couple lives in is called the, “Matrimonial Home”. If you and your spouse regularly use more than one homes together, then each home can be considered to be a matrimonial home. An additional matrimonial home, therefore, can include a cottage, or simply another home in another location.
There are many laws that apply to marriage and divorce in Ontario. One important piece of legislation is called the, “Family Law Act”. There are special rules in the Family Law Act that determine what happens to the matrimonial home in the event of a divorce. However, some spouses may choose to have a marriage contract to decide such issues in advance, rather than use the rules in the Family Law Act.
Regardless of whose name is on the title of the house, each spouse has an equal ownership in the matrimonial home. If the spouses owned more than one matrimonial home, the value of each of these homes must be divided equally to each spouse. Since housing prices and financial circumstances change over time, an important date to keep in mind in these types of situations is called the “Separation Date”. When a Judge considers when a couple actually separated, that can sometimes be a complicated issue. However, generally speaking, the date of separation is often when the couple stops living together.
Although we’ve already mentioned that each spouse has an equal ownership in the matrimonial home, regardless of which spouse has his or her name on the home’s title, this concept is often misunderstood by many couples who get a divorce in Ontario. Therefore, we’d like to be clear that, in most cases, even where one spouse purchased or owned the matrimonial home before the marriage, the entire value of the home must be divided with the other spouse if the couple separates. The spouse who owned the home before the marriage is not entitled to keep, or get credit for, the value of the home at the time of the marriage. This is not the case with most other types of property.
Sometimes couples will disagree about who should be able to possess or remain in the matrimonial home. Generally, both spouses have an equal right to possession of the matrimonial home. Even when the home is owned by only one of the spouses, the other spouse has an equal right to possess and live in the matrimonial home, and that right lasts for the lifetime of the marriage. Also, a Court Order or a contract can make that right last longer than the marriage itself.
That being said, either spouse can also ask a Judge to give him or her something called “exclusive possession of the matrimonial home”. This request can be made to a Judge even if that spouse did not purchase the home, or have legal title to the home. However, Judges will rarely grant such requests, even on a temporary basis, because it is a very serious measure and forces one spouse to leave his or her own home. In extreme circumstances, such as domestic violence or if one spouse cannot afford to move out, then the Courts will be more likely to consider issuing a Court Order for exclusive possession of the matrimonial home.