What is the matrimonial home and who gets to keep it after divorce / separation?
Article brought to you by our Toronto Family Law Lawyers
The matrimonial home is defined in section 18 of the Family Law Act, 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”. Simply means that every property that the couple lived in ordinarily during their marriage or relationship.
The matrimonial home is more than just a valuable asset, it is the place around which family life revolves. Because of the home’s significance, it is a sensitive topic and is treated with more care than ordinary property by the courts. Married parties are given equal rights to possession of the matrimonial home automatically under the statute.
The right to occupy the matrimonial home satisfies one of the basic needs of individuals, being accommodation. Both spouses under Canadian law have the right to possess the home equally regardless of ownership arrangements, who has title, or agreements they may have made themselves. This rule stems from policy that recognizes the effort of both parties in the maintenance of a matrimonial home, whether or not that maintenance is financial.
However, due to divorce or separation, the matrimonial property is often forcefully sold for the purpose of division of marital property, referred to as equalization. In those cases, the parties can choose to either sell the property and divide the earnings from the sale and share in costs, or one party can “buy out” the other’s interest in the home.
In some scenarios, the court can grant an order for “exclusive possession” of the matrimonial home under section 24 of the Act. The court grants such an order when balancing all factors related to the marriage. Factors that are considered typically include the best interest of any children involved, the financial positions of each spouse, availability of other accommodations, any issues of domestic violence, and more.
When it comes to property issues and the separation of cohabiting couples, very rarely do courts grant orders related to the division of property, especially if both parties are not on title. The contrary is seen when there are children involved or there is an order for spousal support or constructive trust, which is also relatively rare.
If you have any questions regarding your interest in your matrimonial home, give our firm a call and book your consultation with one of our family lawyers today.
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