Matrimonial Home: Equal Rights to Possession
Aside from how the ownership was taken in the matrimonial home, the Ontario Family Law Act, section 19 provides that “both spouses have an equal right to possession of the matrimonial home” upon separation. This right continues until the divorce order or an annulment is granted. The right can be extended by a separation agreement or court order.
Considerations on when to stay in the house and when to vacate early:
- The best interests of the children extend the weighing of options from maintaining security and safety in the home to preserving and perhaps the need to introduce new daily routines, school, friends, community programs, sports memberships. A good counsellor will assist them individually through the transition.
- For the senior spouse, upheaval may mean an unanticipated financial transition, uprooting from a familiar community. The focus may now shift to the location of basic services, a new professional support network, and satisfying mobility and transportation needs.
- For many spouses, the home is their highest valued asset. Holding an interest in the property requires that significant repairs are handled quickly until a decision as to its disposition is made. Disposing of the matrimonial home can mean:
a) Transferring one spouse’s interest to the other at a price half the fair market value. Whether the real estate commission should be deducted from the value of the property is a matter for the spouses to agree upon. Typically the spouse purchasing the interest of the other pays for the transfer and registration of title and the legal fees to discharge the present mortgage.
b) Agreement to sell the house to a third party with a prior right of the first refusal to the other spouse.
c) Sale with specific conditions relating to the distribution of the net proceeds such as lump sum spousal support, the unequal division of debts, set off of an equalization payment.
d) The title to the property may be transferred as an asset of the family-owned corporation to be leased for rental income.
- Compliance with the terms of a properly executed marriage contract may include an extended possession of the house by one spouse with the children to the exclusion of the other spouse for a specified period of time.
- Be alert as to whether residing in the matrimonial is being used as leverage by one spouse to encourage prompt settlement. The more discomfort at home, the more motivated spouses become to find a settlement. The settlement at any cost is subject to being set aside on grounds that the effects are unconscionable to one spouse.
- Another important consideration is the choice of the process the spouses will engage in to handle the resolution of all legal issues arising from the marriage upon separation or divorce. Litigation is a long costly approach and if intentions are at odds, a first strike will likely involve an early motion to force a spouse from the matrimonial home. Agreeing to proceed with traditional negotiation may give spouses the opportunity to hear the other’s position at a four-way meeting and deal with issues promptly without a stranger such as a judge making the decisions for the spouses. The transparent respectful collaborative approach encourages spouses to respond to and assist the other to satisfy each spouses’ own needs and those of the other. Meeting face to face with their respective lawyers present, the spouses drive the process. In mediation, a neutral facilitator leads the discussions, concessions as resolutions with the spouses. Respective counsel may or may not be present.
- The disposition of the matrimonial home is treated as a special asset with its own ‘rules’ as set out in the legislation. Adhering to these provisions can be complicated and are best understood with the assistance of a family law lawyer.
The negotiation of the many interrelated issues leading to the disposition of the matrimonial home can be complex. For more information please contact Lorisa Stein using the book an appointment button or the Contact page. She can also be reached at 416 596-8081.