When it comes to separation and divorce, there can be a lot of emotional pain and suffering to contend with, not to mention the often-complicated process of deciding issues around property. And what property is more valuable, on a financial and personal level, than a married couple’s matrimonial home? Below we’ll explore this concept in relation to what happens when a married couple separates and one of the spouses seeks exclusive possession of the home.
What is the “Matrimonial Home”?
The matrimonial home is, simply, the family home. Its legal definition can be found in section 18 of the Family Law Act. According to the Act, the matrimonial or family home is considered to be any property, in Ontario, that a person has an interest in and is/was “ordinarily occupied” as the family residence by that person and their spouse.
Matrimonial Home and Separation/Divorce
Issues involving the matrimonial home become particularly complex upon separation or divorce. Regardless of whether the lease or ownership is in both spouses’ names, or just one of them, both spouses have an equal right to stay in the home. In other words, it is not necessarily who owns the property that gets to remain in the property at separation.
For many of us who have a personal connection to our homes, it can be a difficult and daunting task to decide who gets to stay and who has to go, especially since both spouses have an equal right to stay. Not only that, but neither spouse can sell, mortgage, rent or engage in any other similar practice without the permission of the other spouse. This consent is much harder to obtain when the separation causes tension between the spouses.
So, what’s the solution? How do you decide who gets to stay? What do you do if you need to sell but can’t get permission from your spouse?
Rights of Exclusive Possession
If you reach the point where you can’t make these decisions on your own, it may be time to turn to the courts. Your lawyer can argue on your behalf and present a convincing case in front of the judge for you to get “exclusive possession of the matrimonial home”. If there is an order granted in your favour, allowing you remain in the home, the other spouse has to vacate the home. Failure to comply with such an order may result in fines, and even imprisonment for the other spouse.
An order for the exclusive possession of the matrimonial home can have serious legal and practical consequences, especially for the spouse who is ordered to vacate and remove him/herself from the premises.
There are various factors that the court will consider if you are asking for rights of exclusive possession. If the couple has children, what is in the children’s best interests will prevail. Things like the children’s preferences (where these can be determined, depending upon their respective ages), possible psychological strain on the children, and disruptive effects of the move will be considered. Typically, this may result in the parent with custody being granted rights of exclusive possession, so that the children do not have to be uprooted from everything they know.
If there is a written agreement between the spouses, any existing orders under the “Family Property” section of the Family Law Act, or existing support order(s), will all be considered along with whether the vacating spouse has other suitable and affordable accommodations available to him or her. The court will also factor in safety in cases where there may be allegations of domestic abuse or violence by one spouse against the other and/or their children.
The process of separation and divorce can be challenging, stressful and emotional for spouses. This is especially so when there is the added strain of determining which one of them gets to remain in the matrimonial home and gain exclusive possession of the home until its sale. If it becomes impossible for both parties to stay in the home or make this decision between themselves, turning your mind to hiring a lawyer to commence court proceedings may be your best option.