7 Myths About Who Owns the Matrimonial Home

Published on 29 August 2022, 07:22:56 AM

Think you own your home sweet home? Think again if you separate or divorce in Ontario.

1. Your Home is Your Castle.

Only if you’re legally married. Common-law couples may share the nest, but it’s not a matrimonial home under Ontario’s Family Law Act. Unless you are on the property title or have a cohabitation agreement, expect to leave a common-law marriage with only what you brought into it or acquired jointly. 

Concerned you could be left in your spouse’s dust? Arrange with a family lawyer to get joint tenancy of your family home. It will make you both full owners and if you outlive your spouse, you will automatically inherit the home, without probate delays or fees. With your name on the title, your spouse will have to negotiate with you about who gets to stay in the home when you separate.

2. You Can Be Ousted if You Separate.

Good news! Both you and your spouse have a right to live in the matrimonial home when you separate. It may not be the friendliest of arrangements, but that’s up to the two of you. You can live separate and apart in the matrimonial home as long as you don’t fraternize by having sex, eating or cooking together or being a couple. 

Plenty of couples do it. Caring for children, saving money, between jobs or no real place to go — any reason works. Your spouse or ex can’t lock you out, change the locks or prevent you from staying unless you agree to leave or they have a court order, separation agreement, divorce order or the lease expires. 

Only if your spouse gets exclusive possession, usually because of violence, ongoing conflict or because it’s in the best interests of the children, can you be ousted. 

3. Rental Homes Don’t Count.

Absolutely not. Your right to live in your matrimonial home extends to rentals, even if you’re not on the lease. You may not own the home, but as a couple you can decide who gets to live there after separation.   

4. You Could Lose Everything if You Move Out.

No way. Ontario’s Family Law Act requires your spouse to keep your stuff safe and sound. They may have a court order for exclusive possession, but that doesn’t mean they can legally sell or get rid of shared belongings or your personal possessions. Exclusive possession only gives your spouse the right to live in a matrimonial home without you. Ontario family court will resolve who owns what, including “equalizing” or splitting any property you own. By the way, your spouse has a right to reasonable and adequate notice before you drop by to collect your things. Do call ahead.

5. Possession is 9/10ths of the Law.

Not really. Moving out or having legal title doesn’t affect matrimonial property rights. Your spouse may have owned the home before you married or be the only one on the title, but they are still required to split it 50/50 when you divorce. What the home was worth before you married doesn’t matter. The courts look at the value on the day you separated. So relax. Most divorces conclude by either spouse buying the matrimonial home or selling it and sharing the proceeds. 

6. Your Spouse Can Sell the House Any Time They Want.

Not happening. Your spouse needs your written consent or a court order to sell a matrimonial home. As long as you have exclusive possession, your spouse can’t default on the mortgage to push your home into foreclosure. 

As a first step, preserve your legal interests by having your property designated a matrimonial home. Even if you’re not on the property title, that will prevent your spouse from selling, renting, subletting, mortgaging or borrowing against it without your written consent. A court may set aside transactions made without your knowledge or that you disagree with — especially if you plan to live there the kids or you would be seriously disadvantaged.

7. You Are Owed 50% of Everything.

Not always. Your spouse may have used a business corporation to buy the family home. As long as she’s the majority shareholder, the corporation has legal title to the home. You’ll need a family lawyer to unwind this one. 

On the upside, a sympathetic family judge could agree with you that your financial position is unfair and equalize your assets by giving you a greater share of joint investments or other possessions. Proving your spouse lied about their finances or coerced, bullied or forced you into sign away your legal rights could also help you win your day in  court.  

Get Exclusive Possession of Your Matrimonial Home

Axess Law’s Ontario family law lawyers help you apply for exclusive possession of a matrimonial home. Talk to a lawyer anywhere in Ontario via online video conference 7 days a week, day or evening. Make an appointment by dialing 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form. In person meetings with family lawyers are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

Photo by Dave Chavez |Pixabay.