Friday, June 5, 2020 / by Zifan Gao
For most couples, the matrimonial home represents their largest asset and it is a place of emotional significance – filled with both positive and negative memories.
A matrimonial home is not simply the house in which a married couple lives. In Ontario, it is afforded special treatment under the Family Law Act.
Let’s have look at why the matrimonial home is such a hot topic during a separation or divorce:
#1 Spousal Consent is Always Required
Neither spouse is permitted to sell, mortgage or otherwise, encumber the matrimonial home without the other spouse’s knowledge and consent - be it during a marriage or post-separation, even if only one spouse’s name is on the title.
If you and your spouse cannot agree on what to do with the matrimonial home, one party may apply to the court and request an order for partition and sale.
If your name is not on the title and you fear that your spouse will try to sell it without your consent, you can ask a lawyer to designate the home as your matrimonial home and register that designation with the land registry office. This will prevent the home from being sold unless both spouses consent to the sale.
#2 The Court Can’t Force You to Sell the House to Your Spouse
In a situation where the matrimonial home is owned jointly, neither spouse has to sell their share to the other. Remember that at some point the court may get involved but the judge can only order that the house be sold.
Hence, do not waste money and time looking for a lawyer to “force” your spouse to sell you their share. The money is better spent on the down payment for a new home.
#3 You May Not Get Access to Funds Even After the Home Is Sold
Remember that the proceeds from the sale of the matrimonial home will be held in trust unless you and your spouse agree on how these funds will be divided or until there is a final separation agreement or court order in place.
The reality is that you may not have access to the funds from your home until months after it sells – plan for this and speak with your lawyer before purchasing a new property.
#4 Your Spouse Can’t Change the Locks
Under the Family Law Act, the matrimonial home is afforded special status and both spouses are equally entitled to stay in the home, regardless of who owns it.
There are, however, exceptions to this rule and it may be worth speaking to a family law lawyer to find out if you qualify for an order requiring the other spouse to vacate the matrimonial home.
#5 Leaving the home is OK, but…
You do not lose your right to the matrimonial home even if you move out before the divorce is finalized. However, leaving before a separation agreement is in place may negatively impact parenting arrangements. If you have kids, we suggest that you consider staying in the home until a temporary parenting arrangement is in place – provided it is safe to do so.
Also, remember that even if you leave, you may still have to contribute towards the carrying costs such as mortgage payments, property tax and insurance.
The Role of the Real Estate Agent
Selling a home doesn’t have to be complicated. Consider getting in touch with a real estate agent who you and your spouse both trust.
An experienced real estate agent can act as a neutral facilitator and assist the parties with the amicable sale of their property and avoid unnecessary disputes and associated legal fees. Feuding couples often agree to follow the recommendations of their real estate agents in order to avoid arguing over issues such as listing prices, staging costs and repairs as fighting over these issues will only delay the process and cost you more money.