This article will outline how the matrimonial home is handled under Ontario family law and why consulting with a family lawyer is essential for ensuring a smooth division of property.
1. What is the Matrimonial Home?
In Ontario, the term matrimonial home refers to any property that is or has been the primary residence of a married couple. It doesn't matter whether the home is owned by one spouse or both; if it served as the couple’s family residence, it qualifies as a matrimonial home.
The matrimonial home can include:
- A house or apartment.
- A cottage or vacation home that the couple used together.
- A condo that served as the family’s primary residence.
The key point is that the property is defined by its use as the family home, regardless of who owns it or who is listed on the title.
2. Special Legal Status of the Matrimonial Home
Under Ontario Family Law, the matrimonial home is treated differently from other types of property in divorce or separation proceedings. The primary difference is that both spouses have an equal right to possession of the matrimonial home, even if the property is only in one spouse’s name.
This means:
- Even if the home is solely owned by one spouse, the other spouse has the right to live in it until the matter is resolved.
- If one spouse leaves the home after separation, they cannot be barred from returning without a court order, as both spouses are considered to have equal rights to occupy the home.
It is essential for individuals going through a separation to consult a family lawyer to understand how these rights may apply in their situation.
3. Equalization of Net Family Property
Ontario follows the principle of equalization of net family property (NFP), which means that assets accumulated during the marriage, including the matrimonial home, must be divided fairly between the spouses.
The value of the matrimonial home is included in the calculation of each spouse’s NFP. However, there are important rules governing how the home is treated:
- If the home was purchased during the marriage, its value is shared equally between both spouses, regardless of who made the financial contribution.
- If one spouse owned the home prior to the marriage, only the increase in its value during the marriage is considered in the division of assets, while the original value at the time of marriage is excluded from the NFP calculation.
A family lawyer can help calculate the correct value of the home and other assets to ensure fair division during the divorce process.
4. Possession of the Matrimonial Home
Possession of the matrimonial home is a significant issue during a divorce or separation. While both spouses have an equal right to stay in the home, this doesn’t necessarily mean both will continue living there post-separation.
A family lawyer can help determine whether one spouse can remain in the home, or if it needs to be sold, based on factors such as:
- Who is living in the home: If children are involved, the parent with primary custody may remain in the home for stability.
- The financial situation of both spouses: The ability of either spouse to afford the home or the purchase of a new property can influence the decision.
- Safety concerns: If there are allegations of domestic violence or other safety risks, the court may order exclusive possession to one spouse.
5. Sale of the Matrimonial Home
In many cases, the matrimonial home is sold as part of the divorce settlement, and the proceeds are divided between the spouses. The sale of the home typically occurs when:
- Neither spouse wishes to retain the home.
- Both spouses agree to sell the home to split the proceeds.
The sale can be a complex process, especially if the home is under mortgage or there are significant financial considerations. A family lawyer can help guide the sale process, ensuring that both parties receive their fair share and that the process complies with legal requirements.
6. Buyout of the Matrimonial Home
Sometimes, one spouse may wish to remain in the matrimonial home while the other spouse moves out. In this case, one spouse may buy out the other’s share of the property. The buyout typically involves:
- Determining the home’s current market value.
- Subtracting any outstanding debts or mortgages.
- Agreeing on a fair payment arrangement for one spouse to buy out the other’s share.
This arrangement can prevent the need to sell the home and can be an ideal solution if the spouse remaining in the home is financially capable of buying out the other’s interest. A family lawyer can help negotiate the terms of this buyout and ensure that the process is legally sound.
7. Exemptions and Special Considerations
While the matrimonial home is generally subject to equalization, there are some exceptions and special considerations:
- Pre-marriage ownership: If one spouse owned the matrimonial home prior to the marriage, only the increase in value during the marriage is subject to equalization, while the value at the time of marriage is excluded.
- Gifts or inheritances: If one spouse received the matrimonial home as a gift or inheritance, that portion may be exempt from equalization.
- Domestic violence: In cases of domestic violence, one spouse may be granted exclusive possession of the home, or the court may issue an order to ensure that the victim of abuse is protected.
8. Conclusion
The division of the matrimonial home is one of the most important and sensitive aspects of any separation or divorce in Ontario. Understanding the legal framework that governs the division of property, including the special treatment of the matrimonial home, is crucial for both spouses to ensure a fair and just outcome.
Whether you are considering separation, divorce, or need to address the division of your matrimonial home, it’s crucial to work with a family lawyer who can guide you through the complexities of Ontario family law. A lawyer can provide tailored legal advice, help you understand your rights, and assist in resolving property disputes in a way that protects your interests and ensures a smooth transition.