Rules regarding the matrimonial home are different for married couples and those in a common law relationship.
At the time of separation, the home where the legally married couple was living is classified as the matrimonial home. More than one matrimonial home is possible.
In case a property is purchased by one of the spouses before their marriage, after cohabitation, it becomes a matrimonial home. In Ontario, either of the married spouses possess an equal right to stay in the matrimonial home.
The equal right to the matrimonial home exists till:
- An agreement is prepared which disallows one spouse from living there
- A court order stating that one spouse can’t live there
- Lease of the matrimonial home ends
- The matrimonial home is sold
- Spouses get divorced
The matrimonial home cannot be sold or put on a mortgage in the absence of the other spouse’s express permission.
Couples can also designate a property as their matrimonial home and apply to the land registry office to register the designation.
If both spouses make the designation, then any other property is excluded from the definition of matrimonial home and only the designated one counts as matrimonial home.
One spouse can also make the designation alone, in this case all other properties being used as matrimonial homes will continue to be considered as matrimonial homes. Eminent family law lawyers can help in making this designation with the land registry office.
Any common law couple does not have the right to stay in the family home if that’s not in their name. Sale and purchase of the family home do not require the permission of the other spouse.
How to get an order for exclusive possession?
Exclusive possession of the matrimonial home can be asked by one spouse by going to the court. In case of conflict with your spouse or if children are living in the same house, you can request a court order.
In this situation, you and your children can stay in the family home while your partner is not allowed on the property.
Selling or mortgaging will still not be allowed without the other spouse’s written consent.
Courts consider many aspects before deciding to award exclusive possession including:
- Finances of both partners
- Whether the other spouse can make an affordable living arrangement
- If any abuse is involved towards a spouse or the children
- Presence of existing court orders
If children are involved, their best interests are considered by the courts which consider the impact of the move on the child along with their preferences.
Selling or mortgaging a matrimonial home
Written consent from one partner is needed when the other partner considers selling or mortgaging a house. All owners of the home need to give their consent for the house to be sold or mortgaged. Only possessing a court order can reverse this clause.
If a spouse purchases the home’s share from the other, they will have to qualify for a new mortgage individually. A real estate professional should determine real estate value.
If both spouses agree to sell the home, the process to be followed has to be decided.
The sale proceedings are first applied to the mortgage and real estate fees. The remaining amount is divided amongst the spouses as per the provisions of the court order or your separation agreement.
How We Can Help
At Nanda & Associate Lawyers, our capable divorce lawyers help in making effective representation for the division of the matrimonial home. They understand your specific circumstances and provide tailored and customized solutions for each of them. Many legal complexities exist in formulating separation agreements detailing the matrimonial home’s treatment; an experienced divorce lawyer can help you to navigate better in those complex situations.
Our Mississauga Divorce Lawyers are available for a consultation. Come and experience our quality legal counsel and personalized care we give to each client.