Matrimonial Home

The matrimonial home is defined in Section 18(1) of the Family Law Act 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.”

• The words “ordinarily occupied” are significant. Under certain circumstances it is possible to have more than one matrimonial home, for example a cottage in addition to the main house.
• Married spouses each have an equal right to possession of the matrimonial home. This means 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 from any other asset in relation to either spouse’s Net Family Property (“NFP”). For example, if one spouse owned the matrimonial home before the marriage, yet the spouses occupied it from the outset and during the marriage, generally speaking both spouses have equal entitlement to its value as at the separation date.
• Before and after separation, neither spouse may mortgage or sell the matrimonial home without the consent of the other spouse. However, under specific conditions, either spouse may 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 may include using an equalization payment from your spouse towards the purchase. If you are receiving spousal support, it will count towards the 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, some alternative lenders do not require a separation agreement before arranging a mortgage.