How will my Matrimonial Home be Divided?

By Barbara Kristanic
September 26, 2014
ON FAQ/Asset and Property Issues

The matrimonial home is the home in which two married spouses ordinarily reside in prior to their separation.

The matrimonial home carries special significance in the field of family law and is treated differently than the other assets that may be involved in a couple’s separation.

The information I will provide in this video is thus only applicable to couples who are married (and not common law couples).

You should know that, if you are married, both you and your spouse have an equal right to possession of the home after your separation (regardless of ownership) unless and until you and your spouse agree, or a judge orders otherwise. This means that one of you cannot kick the other out of the house. If it becomes stressful in the home after your separation and you and your spouse cannot agree on who will stay in the home, you may need the assistance of your lawyers, and/or a court.  

Similarly, notwithstanding that only one spouse may be on title to the matrimonial home, when a property is a matrimonial home, neither spouse is entitled to sell the home, or encumber it without the other’s permission.

As you will hear in our other video summarizing the process for equalization of net family property, when married spouses separate, the law wants them to equally divide the increase in the value of their net worth from the date of marriage to the date of separation.  The spouse who has accumulated a higher net worth is required to pay the other spouse half of the difference between the respective net increases.

In order to achieve this calculation, both parties must disclose the value of all of their assets and debts at both the date of marriage and the date separation. This is because only the increase in the value of a spouse’s net worth from the date of marriage is to be shared.

There are limited exceptions to this rule, with one key exception being the matrimonial home.

Notwithstanding that one spouse may have owned the matrimonial home on the date of marriage, he or she will not be able to deduct the value of the home as an asset that was owned at the date of marriage as he/she would with their other assets (and thus only sharing in the increase of the asset). Instead, the entire value of the matrimonial home at the time of separation will be included in the calculation of the owner spouse’s net worth. In effect, this means that, unless there is a clear and appropriately negotiated contract stating otherwise, the spouse that owned the  home at the date of marriage will be required to share in the entire value of the home with his/her spouse upon separation.

As you can see, this can have a huge effect on the division of property. If you are thinking of getting married, or you are involved in a separation, it is important to contact an experienced family lawyer to assist you in ensuring that your interests are protected

Barbara Kristanic is a partner at the law firm of Nathens, Siegel LLP which has offices in Mississauga, and Toronto, Ontario. Barbara has been practicing family law exclusively since she became a lawyer in 2004. She is a seasoned family lawyer who can comfortably handle a wide range of divorce related legal issues, including property division, child custody and access, alimony and child support. Barbara heads up the Mississauga law office.

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September 26, 2014
Categories:  FAQs

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