What is a Matrimonial Home(s) under the family law act?

February 12th, 2013 by

matrimonial-home-toronto

Section 18(1) of the Family Law Act says that “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”

What does this really mean? Your matrimonial home is any home that you and your spouse usually lived in together. That a property is or is not a matrimonial home is only important if you do not hold title to that property jointly. If you hold title to a property jointly, then there is an assumption that the property belongs equally to both owners. Typically, your matrimonial home would be the home that you live in during the week. However, any number of homes owned by you could be matrimonial homes.

For example, if you have a cottage that you use together on weekends, it can be considered a matrimonial home. If one spouse uses the cottage exclusively, or almost exclusively, then it is not a matrimonial home. Conversely, if you own a condo in Florida that you spend your winters in, and that is the only time the condo is used by you or your spouse, that is likely a matrimonial home.

Any matrimonial home has certain protections under the Family Law Act. First, both spouses have the equal right to live in that home under the law. This means that one spouse cannot change the locks and refuse to let the other in. Secondly, the title spouse cannot, without the consent of the non-titled spouse, “alienate” the matrimonial home, meaning they cannot mortgage, sell or transfer the home without specific written consent.

The other very important characteristic of a matrimonial home is that if one spouse brings the matrimonial home into the marriage, they are not entitled to a deduction from their net family property for the value of the matrimonial home at the date of marriage, whereas they would be for any property that is not a matrimonial home.

It is possible, however, to ensure you only have one matrimonial home by both spouses executing a designation of matrimonial home. This designation is then registered on title to one matrimonial home, and makes it impossible for any other property to become a matrimonial home.

There is also an important exclusion for matrimonial homes that happen to be part of a farm property. Usually, the total value of the house, as well as the land upon which it sits, is divided equally between the parties on marriage breakdown. However, if the house happens to sit on a working farm, then only the land necessary for the use and enjoyment of the house is valued as the matrimonial home, and the balance of the land is valued separately.


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