When a couple separates after being married or living together, the division of their property becomes an immediate concern; in particular, questions arise regarding the home they shared. Common questions about the matrimonial home include:
In cases of high-net-worth families, it is common to own multiple properties, potentially in foreign jurisdictions. While the assumption may be that a family’s primary residence may be the only matrimonial home, this is not the case. Recreational properties are subject to the same rules as the main residence.
At Boulby Weinberg LLP, our family lawyers have an in-depth understanding of the laws surrounding matrimonial property in Ontario and beyond. Our partners, Sarah Boulby and Oren Weinberg, are each highly regarded internationally as renowned family law practitioners. They are both Fellows of the prestigious International Academy of Family Lawyers (IAFL), which provides them with a network of international legal experts around the world. As a result, our firm is uniquely positioned to manage matters pertaining to the matrimonial home(s), particularly when one or more property is located outside of Canada.
The matrimonial home is given special treatment under Ontario’s family legislation. Even in cases where one spouse brings the asset into the marriage, both parties are equally entitled to share the full value as at the date of separation. This is applicable even if the home was gifted or purchased with gifted funds. Furthermore, a spouse cannot sell or mortgage a matrimonial home without the consent of the non-owner spouse or court order. Spouses may have more than one matrimonial home. Any real property ordinarily occupied by the parties can be considered a matrimonial home, including the family cottage or ski chalet.
When a couple separates, there is often confusion over who has the right to remain in the home while the terms of separation are negotiated. Even if only one spouse is the named owner of the home, both spouses have equal rights to possess the property after separation. If a couple has children still at home, often the parent who will be spending more time with the children will remain in the home, so as not to disrupt their routine more than necessary. In other cases, the children may remain in the home, while the parents maintain separate residences and alternate who stays with them. While it is possible for a couple to include terms regarding the division of the value of the matrimonial home through the use of a marriage contract, any term attempting to limit a party’s right to possess the home after separation will not be upheld.
In cases where a couple is not legally married, the interest in the home remains with the person(s) who holds legal title to the property. There is no obligation to equalize the value, nor does the non-owing spouse have any rights of possession.
Where a family home is owned by a trust for the benefit of one of the spouses, it is not subject to special treatment as a matrimonial home. That is, the other spouse will not have rights of possession to the home, their consent is not required to mortgage the home, and even if the property was held at the date of marriage, the beneficiary spouse may claim any value of the trust interest at that date as a deduction.
When a couple seeking a divorce owns real property outside of Canada, courts must factor the value into the equalization of family property. A court does not have jurisdiction over real property held in a foreign country. It may make an order against the owner of the property personally but not one enforceable against the property. The court will equalize the couple’s assets based on the value of the foreign property.
Whether you are in the process of separating or making plans for your assets in the event of a future breakup, Boulby Weinberg LLP can help. Our lawyers will ensure you are fully aware of your rights and obligations regarding your matrimonial home and we will help protect your interests.
To arrange a consultation at Boulby Weinberg LLP with a knowledgeable family lawyer with extensive experience with respect to your rights to the matrimonial home, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.