What is so special about the matrimonial home?
Under family law, the matrimonial home is treated with special rules. But what is a matrimonial home?
In Ontario, under s. 18(1) of the Family Law Act[1], the matrimonial home is defined as:
“[e]very property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”
Possession of the Matrimonial Home
The matrimonial home is a place where both spouses have equal right to possess the matrimonial home. This is true even if only one spouse has legal ownership. Even if the spouses are separated, they both have the same right to possession of the home, unless there is a court order which awards one party exclusive possession of the home.
The right to possess the home extends to the right to sell the home. Regardless of which spouse’s name is on title, the matrimonial home cannot be sold or an interest encumbered without the approval of both spouses. For example, if it is the husband’s name on title, then the husband cannot sell the home unless he has the wife’s consent to the sale. In certain circumstances where consent cannot be obtained, a court may allow a sale of the home.[2]
Net Family Property Calculation
When conducting net family property calculations, a matrimonial home is treated uniquely.
Some considerations in conducting the calculation are:
- if the home was owned on the date of marriage and continues to be the matrimonial home on the date of separation, then the value of the home cannot be included as a deduction;
- if a gift or inheritance received after the date of marriage is used towards the matrimonial home, then, unless it falls within an exception, that gift or inheritance can no longer be excluded from the calculation; and
- there can be more than one matrimonial home.
The matrimonial home may be one of the largest assets you own. It is recommended you work with a lawyer to determine what your living arrangements should be upon separation as well as how to include the value of your matrimonial home in your net family property calculation. If you are in the GTA, we can help.
[1] Family Law Act, R.S.O. 1990, c. F.3
[2] Family Law Act, R.S.O. 1990, c. F.3, s. 21