In Ontario, the division of matrimonial property is governed by the Family Law Act. The matrimonial home is treated differently from other assets and is subject to special rules.
Under the law, the matrimonial home is defined as any property in which one or both spouses have an interest and that is, at the time of separation, ordinarily occupied by the spouses as their family residence. This can include a house, condominium, or cooperative apartment.
When a couple divorces, they must divide their assets, including the matrimonial home. However, the law gives special treatment to the matrimonial home to protect the spouse who is not the legal owner of the property. The legal owner is the person whose name appears on the title of the property.
If the matrimonial home is owned by only one spouse, the other spouse still has an equal right to possession of the home. This means that the spouse who owns the home cannot sell or mortgage the property without the other spouse’s consent.
When it comes to the division of the matrimonial home’s value, the law states that each spouse is entitled to an equal share of the property’s value, regardless of who owns the title. This means that the spouse who owns the home must compensate the other spouse for their share of the home’s value.
If the spouses cannot agree on the value of the matrimonial home, they may need to have it appraised by a neutral third party. The spouse who owns the home may be able to buy out the other spouse’s share, or they may need to sell the home and divide the proceeds equally.
It’s important to note that there are many factors that can affect the division of matrimonial property, and the division of the matrimonial home is just one of them. It’s always best to seek the advice of a lawyer who specializes in family law to understand your specific situation and legal options.
WHAT IF ONE SPOUSE OWNED THE HOME FIRST AND THEN DIVORCE
If one spouse owned a home before the marriage and then the couple divorces, the situation can be a bit more complex. In Ontario, property acquired by one spouse before the marriage is typically considered separate property and is not subject to division as part of the equalization of net family property that occurs during divorce proceedings.
However, if the home that was owned by one spouse before the marriage was used as the couple’s matrimonial home during the marriage, it may be subject to division. This is because the home may have increased in value during the marriage due to contributions by the other spouse, and the law recognizes that both spouses have an equal right to share in the value of the matrimonial home.
In such cases, the spouse who owned the home before the marriage may be entitled to a credit for the pre-marriage value of the home, but the increase in value during the marriage may need to be divided equally between the spouses. This applies to any properties and assets that would not be considered a matrimonial home. For matrimonial homes, it is more complicated and it is best to consult a family lawyer.
It’s important to note that the specific circumstances of each case can impact how the property is divided, and the laws around property division in divorce can be complex. It’s always best to seek the advice of a lawyer who specializes in family law to understand your legal rights and options.
Speaking to a family lawyer that has experience with property division between couples that are divorcing would be the right way to go as you will acquire real knowledge and be able to make the right decisions for you.