Article written by Ron Shulman
After a marriage ends, the division of property is largely governed by the Ontario Family Law Act, which provides that in general the property is to be equally divided, subject to certain exceptions.
One of those exceptions pertains to the treatment of the matrimonial home. This article discusses exactly what makes the matrimonial home unique in the family law context.
What constitutes a “matrimonial home” ?
Under family law, a “matrimonial home” is a residence that is owned and “ordinarily occupied” by the spouses and their family on the date of separation. (Note that this can include any housing configuration, including condominiums or even mobile homes, as long as it is a family residence. Furthermore, there can be more than one matrimonial home: for example a family cottage can also amount to a second “matrimonial home” in the right circumstances.)
A matrimonial home cannot be sold unless both spouses consent to the transaction. Among other things, this means that if one spouse attempts to sell or mortgage the matrimonial home without the other spouse’s consent, then any purchaser or mortgagee will take the property subject to the second spouse’s interest.
Why the matrimonial home is special?
As compared to other property that two married parties may own, the law treats the matrimonial home differently in several respects:
Deemed a matrimonial home regardless of title – One of the most important distinctions arises if one of the spouses brought the home with them into the marriage. In other words, if one spouse owned the house when he or she was single, with the second spouse moving into it after marriage, the home automatically becomes the parties’ “matrimonial home”.
Equal right to possession – Next, the Ontario Family Law Act has provision specifically stating that at separation, both spouses have an equal right of possession of the matrimonial home. This means that at separation neither spouse can exclude out the other from the home (at least not without an agreement, or a court order for exclusive possession).
Different treatment on equalization – Also, the Family Law Act provides that even though one spouse may have been the original owner prior to marriage (whether through purchase, gift, or inheritance), and even if that spouse is the only one holding title, once the home gets designated as the matrimonial home, the full value of the home at the date of separation must be shared.
This means that at separation, when individual net family property amounts are being calculated for equalization purposes, the marriage-date value of the home is not deducted in favour of the spouse who brought the home into the marriage. This is the exception to the normal rule that applies to other marital property, which is that on separation each spouse is entitled to deduct the value (as of the marriage day) of any items he or she brought into the marital union.
There are ways to get around this exception, however. For example, a homeowner who is contemplating marriage can protect these interests by entering into a marriage contract with his or her future spouse, expressly allowing him or her to deduct the value of the home should the parties decide to later separate.
Naturally, it is important to obtain solid legal advice on how to validly accomplish this, as well as on issues which may arise as result of the division of the matrimonial home, which are specific to your situation; feel free to contact our office and we will be happy to discuss your situation and explain the law as it relates to your specific case.