Family Law
The Matrimonial Home
Family Law
Matrimonial Home
In Canadian family law, the matrimonial home has special legal treatment—especially when spouses separate or divorce. A matrimonial home is not just any property; it has unique rights attached to it that protect both spouses regardless of who holds title
Our Family Law services
What is the matrimonial home?
Let’s say one of the spouses purchased a home before marriage. After marriage, when they move into the home, it becomes their matrimonial home under family law. This implies that, despite the house’s registration in one spouse’s name, both spouses retain rights over the property during their legal marriage. These rights exist only until the couple remains married. Once the divorce is final, the titleholder regains all property rights if the other spouse receives the equalization amount as agreed or ordered. You can designate your home as a matrimonial home on the land registry system if the home is registered only in one spouses name for protection. If there are multiple family homes and both spouses have designated the same house as the matrimonial home, then the court will only consider this single home as the matrimonial home. However, if only one spouse has designated the house, the court will consider the other family homes also as matrimonial homes, and the final possession or equalization order will include all of them.
Till when do the equal rights of the couple to the property last?
The equal rights of the spouses over the matrimonial home will remain legal until:
- A separation or divorce settlement agreement is signed by the couple: The couple can agree to voluntarily give up their rights to the home or to make alternative living arrangements, and this can be signed and witnessed, making it legally enforceable.
- A court order is issued: The family court might issue an order granting one of the spouses exclusive possession of the matrimonial home, considering various factors.
- The lease on the home expires: Obviously, once the lease on the home expires, the couple’s equal possession rights to the property are no longer applicable.
- Sale of the home: Neither spouse retains any rights upon selling the property to a third party. The other spouse consents to the sale of the property once they receive the equalization amount from the titleholder.
- Finalized divorce: Once the court grants the divorce, the law no longer recognizes the spouses’ equal rights to the matrimonial home. However, the order will also stipulate the equalization amount the titleholder should pay to the other spouse.
What factors does the court consider in deciding possession of the matrimonial home?
If the spouses cannot come to an agreement on the matrimonial home through negotiations, they can approach the family court to decide on this matter. The court will look at the following factors:
- Children’s best interests: Here, the court will consider what is best for the children, prioritizing their stability and welfare over any other issues affecting the couple. If the children are old enough, the court will also try to ascertain their preferences. The court will try not to change the children’s existing accommodation and schooling arrangements.
- Finances of the spouses: In some cases, one of the spouses might be in a weak financial position, making it impossible for them to make arrangements for alternative accommodation.
- Can the spouse make alternative accommodation arrangements? Even if the spouses might be able to pay for it, one of them might face difficulties, such as the unavailability of housing in the area.
- Any history of violence or abuse: If there is a history of violence or abusive behaviour from one of the spouses, the court might grant exclusive possession of the matrimonial home to the other spouse for safety reasons.
- Any existing agreements or contracts: You may submit any written and signed contracts, like separation agreements, marriage contracts, or prenuptial agreements, to the court. If they are legally enforceable and fair, the court might consider the mutually agreed terms in those contracts.
How can a divorce lawyer help you?
In order to secure your whole possession of the matrimonial home, it is crucial that you secure the services of an experienced divorce lawyer. A lawyer can assist in the following:
- Negotiating the separation agreement: The possession of the matrimonial home will be settled in the separation agreement, along with spousal and child support and the parenting arrangement of the children.
- Blocking unauthorized sale or mortgage of the matrimonial home: If your spouse is planning to sell or mortgage the matrimonial home, your divorce lawyer can take legal action to block this. He can also help you designate the home as a matrimonial home in the land registry system to prevent such transactions without your consent.
- Fighting for exclusive possession in case of violence or abuse: Regardless of the name on the property title, the court can grant one spouse exclusive possession of the matrimonial home for safety reasons. If there is evidence of violence or abuse toward one spouse or children, the court might grant them exclusive possession.
- Assisting in the property division and equalization: During a divorce or separation, the couple must divide their assets, finances, and liabilities. As far as the matrimonial home is concerned, the spouse who holds the title is expected to pay the other spouse an equalization amount for the full value of the property.
- Legal representation in court: If the spouses cannot come to an agreement on the possession or equalization of the matrimonial home, the matter will have to be settled in court. Your divorce lawyer will represent your interests and fight for your rights in court.
Frequently Asked Questions
Does the matrimonial home automatically split 50/50?
Not necessarily. While both spouses have equal possession rights, division of the value (equalization) depends on the overall property and net family property calculations. A simple 50/50 split of the home’s value may not always apply.
Can my spouse sell or mortgage the matrimonial home without my permission?
No. The law prohibits either spouse from selling, mortgaging, or otherwise encumbering the matrimonial home without the other spouse’s written consent or a court order.
Can a prenuptial or marriage contract override matrimonial home rights?
In general, rights to the matrimonial home under family law cannot be overridden by a prenuptial or marriage contract. Courts will still consider whether the home was a matrimonial home and apply family law protections.
What if the home was owned before marriage?
If one spouse owned the home before marriage but moved in with the other spouse, it still becomes a matrimonial home for the purpose of family law rights.
Can I stay in the home after separation?
Yes—until a separation agreement or court order changes possession rights, both spouses retain equal rights to live there.
Are children’s needs considered?
Courts often prioritize the best interests and stability of children when deciding exclusive possession or how possession will work.
Which spouse can stay in the matrimonial home after separation?
Both spouses are legally allowed to stay in the matrimonial home as long as they are officially married. Please note that even during the period of separation, as far as the law is concerned, the couple remains married, and they have equal rights to stay in the matrimonial home. Once a separation agreement is signed or a court order is issued, handing over the whole possession to one of the spouses, the other spouse will be forced to move out of the home.
Can my spouse sell or mortgage the matrimonial home without my approval?
No. It is not legally allowed for one spouse to sell or mortgage the matrimonial home without the other spouse’s consent. Once the home is designated as a matrimonial home, both spouses will be required to consent to the sale or mortgage of the property.
Can my prenuptial agreement protect my matrimonial home from equalization?
No. Canadian law excludes the matrimonial home from the assets mentioned in your prenuptial agreement. Regardless of the terms of division mentioned in the prenuptial agreement, the court will order the possession or equalization of the matrimonial home based on the circumstances of the couple at that time.
We can Help
If you are trying to gain whole possession of your matrimonial home, contact our legal team today for assistance. Our experienced divorce lawyers will fight for your rights on the matrimonial home and advocate for a court order in your favour.
