The family home is usually one of the assets of greatest emotional and financial value for a married couple. In the event of a separation, determining how the property will be managed can become complex. Thankfully, Ontario’s Family Law Act outlines important rights and protections available to spouses.
What Is a Matrimonial Home?
A matrimonial home refers to a property that is ordinarily occupied by a married couple as their family residence. In some cases, spouses may have more than one matrimonial home. The property can be owned or rented, and it can be a house, apartment, townhome, or co-op residence. Properties that were not frequently occupied by both spouses may not be considered matrimonial homes.
Under the matrimonial home laws outlined in the Family Law Act (FLA), spouses are generally granted equal rights to the possession of the property during the marriage and separation period unless otherwise stated in a court order or agreement. For many couples, the matrimonial home is a place of great emotional and financial significance, making it an especially important asset to understand under provincial law.
What Do Matrimonial Home Laws Protect?
The matrimonial home laws outlined in the Family Law Act (FLA) refer only to the legal protections associated with matrimonial homes in Ontario.
The FLA protects each spouse’s equal right of possession and their right to consent to the sale or mortgage of the property. In many cases, a spouse may not evict or prevent the other spouse from entering the home during a separation without a court order or separation agreement. A spouse must also obtain the written consent of their spouse before selling or mortgaging the property.
These rights generally apply regardless of legal ownership of the property. Under matrimonial home laws, a property may still qualify as a matrimonial home even if it is legally owned by only one spouse or was purchased before the marriage.
What Happens in a Separation?
Upon separation, how a matrimonial home is managed will depend on the circumstances of the relationship and legal ownership of the property. In many cases, the value of the property is considered as part of the equalization between spouses. In some cases, the court may grant possession, also known as “exclusive possession”, of the property to one spouse and order the other one to move out. Exclusive possession may be granted when it is believed to be in the best interests of dependent children.
How Does This Apply to Common-Law Partners?
In most provinces, including Ontario, matrimonial home laws only apply to married couples. This means that property owned by common-law partners follows different rules. In this case, property rights are generally determined by legal ownership of the property.
If one partner owns the property, the other partner does not have the right to possession and may not have the same rights to remain in the property. If the property is owned jointly, then partners must determine how the property will be managed upon separation.
How Long Do I Have The Right to Stay on the Property?
In general, a spouse’s equal right to stay lasts until:
- There’s a separation agreement stating that you can no longer live there
- There’s a court order stating that you can no longer live there
- You and your spouse sell the home, or the lease ends
- You and your spouse get divorced
- If you get divorced and your name is not on the title, you are no longer considered a spouse with equal rights to the property
- If your name is on the title, the spouses must determine how the property will be managed
As matrimonial home rights may change following a divorce, separating spouses often seek legal advice before making decisions about the ownership or occupancy rights.