Matrimonial Home

The matrimonial home, as defined by Section 18(1) of the Family Law Act is as follows:

 

"Every 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."

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• The words "ordinarily occupied" have significance.  It is known fact that under certain circumstances it is possible to have more then one matrimonial home - i.e. a cottage property in addition to the main house. 

• Married spouses each have an equal entitlement or right to possession of the matrimonial home.  This infers the notion that a spouse cannot be forced out of the matrimonial home without written consent or a court order for "exclusive possession".  Essentially, the matrimonial home belongs to both spouses, regardless of whose name appears on title.  

• While the matrimonial home is certainly an asset, it is treated differently then any other asset in relation to either spouses Net Family Property ("NFP").  For example, if one of the spouses owned the matrimonial home prior to marriage yet the spouses occupied this home from the onset and during the marriage, generally speaking, both spouses have equal entitlement to its value as at the separation date.     

• Prior to and post separation, it is important to note that neither spouse may mortgage or sell the matrimonial home without the consent of the other spouse.  However, under specific conditions it is possible for either spouse to force a sale of the matrimonial home by way of a court order. 

• It is possible to buy the matrimonial home from your spouse.  However, you must qualify to purchase the home if a mortgage assumption or other financial arrangement is contingent upon the purchase.  Exceptions to this may include using an equalization payment from a spouse towards purchase of the matrimonial home.  If you are receiving spousal support, this will count towards your income used to qualify you as a borrower. 

• Generally speaking, most lenders will not advance a mortgage loan without a legal separation agreement in place.  However, there are alternative lenders that do not require a separation agreement prior to making a mortgage loan arrangement.