The Matrimonial Home

The matrimonial home is usually the most valuable asset the family owns at the time of separation. Regardless of who has legal ownership of the matrimonial home, both spouses have an equal right to continue residing there after the separation until such that time the parties or the Court decide otherwise. Spouses cannot borrow against the matrimonial home or sell it without the knowledge and consent of their other spouse. While the court can order the sale of the matrimonial home in certain situations, the court cannot order one party to purchase their spouse’s share of the matrimonial home – and only the parties themselves can make such arrangement. In dealing with the matrimonial home after separation, it is often necessary to involve other professionals, such as real estate agents, mortgage brokers, or appraisers.

The Matrimonial Home

Section 18 of the Family Law Act defines the matrimonial home as

[e]very 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.€

Both spouses have an equal right to possession of the matrimonial home.  This becomes difficult upon the breakdown of the marriage, if they both want to reside in the home.   A court can make an order for exclusive possession of the matrimonial home. Without such an order, one spouse cannot force the other out of the home upon breakdown of the marriage.  The court considers the following factors when determine which spouse has the right to continue to live in the residence:

  • financial situations of both parties
  • any written agreements
  • best interests of the children
  • availability of other accommodation
  • existence of any support or property orders
  • any domestic violence by one spouse against the other spouse or against the children


Other Excluded Property

Gifts, or inheritances through third parties are another exception to the division of property after a marriage breakdown.  Even though they are acquired during a marriage, they are not shared.  Other examples of excluded property include:

  • Damages received for personal injuries
  • Property that the parties have agreed to exclude by way of a domestic contract
  • Unadjusted pensionable earnings
  • Proceeds of life insurance policies which are payable upon the death of the life insured


How is Property Divided between Unmarried Couples?  

While only married couples are entitled to equalization of family property under the Family Law Act, the division of property for unmarried couples is determined through equitable principles of ownership.  An unmarried spouse is entitled to property registered in their name, unless the non-titled spouse can prove that such property is being held in trust for them.  This can be achieved through a resulting trust or constructive trust.

A resulting or presumptive trust presumes that a person who places property in the name of another intends that person to hold the property in trust for the donor.   The more common and more recent equitable principle with respect to property is the constructive trust.  The constructive trust is created in favour of the party who is not on title, but rather contributed work or money to the acquisition, preservation or maintenance of the property.   A stay at home mom, who continued to the upkeep and maintenance of the household is an example of someone who may be entitled to a constructive trust.

If you are going through a relationship break down and need assistance to determine your property rights, please do not hesitate to contact our office:  416-924-5969


We're Here To Help