What is the Matrimonial Home?

What Is A Matrimonial Home?

The matrimonial home is unique. Different rules apply to the matrimonial home than to the rest of your assets.The matrimonial home is the home in which legally married spouses reside on date of separation. It is governed by special rules in every respect regardless of who holds legal title to the matrimonial home.

Both spouses have the right of possession to the matrimonial home on separation. One spouse cannot require the other spouse to leave the matrimonial home in the absence of a written domestic contract providing for exclusive possession or by way of a court order granted to provide for exclusive possession.

The way the matrimonial home is dealt with in the equalization of net family property is also subject to unique rules.

I Want To Stay In My House. Can I Buy My Spouse's Share Of The House?

A home is sometimes a couple’s largest asset. Often people own their home jointly. If you and your spouse settle the matter outside of court, you can agree that one person will purchase the other’s share of the home.

If your matter goes to court, the court will not normally order one spouse to sell his or her share of the home to the other. If the parties cannot agree, the court may order that the home be sold and the proceeds be divided.

Do I Have To Leave My House?

Both parties are entitled to stay in the home unless one spouse obtains an order for exclusive possession of the home or the parties agree that one party will remain in possession exclusive of the other party. This is true even if one spouse owns the home and the other has no ownership interest in the home.

How Do I Sell The House And Move On?

If you own your home jointly, you and your spouse must agree to either list and sell the home or transfer it to the spouse who wishes to purchase the other’s share. If your spouse will not agree to sell you his or her interest in the home, you may have to get a court order to list the home for sale.

Do I Get Half of My Spouse’s Property in Divorce?

There is no simple answer to whether or not you get half of your spouse's property in divorce. The cute portrayal of a house being physically sawed into two pieces is not always the way it works. Also, a quick uninformed calculation may end up costing you many times more than a careful and skilled legal review.

The division of property between married spouses on separation is called “equalization of net family property”.  The payment from one spouse to the other is called an “equalization payment”.  The relevant date for the purpose of calculating the equalization payment is the date of separation.  The equalization calculation can be done when one applies for a Divorce Order but it is not necessary to wait to be divorced to resolve your property rights once separated.

Property that is owned by one spouse only is equalized based on its value as at the date of separation.  Jointly owned property, that is, property owned by both spouses, is divided as at the date of settlement or determination by the Court.

After a legal review and calculation, the spouse who has the higher net family property is the one who pays the other spouse an equalization payment.   The equalization payment is determined after the calculation of each party’s net family property as at the date of separation.

But what is property?  Property is actually any asset which you own as at the date of separation including, but not limited to, real estate, business interests, pensions, household items and furniture; vehicles; jewellery, art, electronics, tools, sports and hobby equipment, bank accounts and investments.

To calculate a party’s Net Family Property, you start by determining a party’s total assets, from which the following is deducted to arrive at the value of the net family property for equalization purposes:  assets owned as at the date of marriage (called deductions); gifts from third parties (but not from the other spouse) as at the date of separation; inheritances as at the date of separation (called exclusions); and debts and liabilities.

So what you are actually entitled to, is half of the difference between of the net family properties of both parties.  For example, if your spouse has net family property of $200,000.00 and you have net family property of $100,000.00 then your spouse pays you $50,000.00 to equalize your properties, leaving each of you with $150,000.00.

This may sound simple but we have seen the misinterpretation of even one number in this calculation causing a loss to one of the spouses in the hundreds of thousands of dollars.

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3300 Highway 7 West, Suite 210
Vaughan, Ontario L4K 4M3
Telephone: 416 987 3300

Fax: 905 907 0707
Hours: 9am to 5pm


Bortolussi Family Law is located in Vaughan, Ontario and serves the Greater Toronto Area including Woodbridge, Concord, Maple, Kleinburg, Thornhill,  Vaughan, Markham, Richmond Hill, Brampton, Bolton, Nobleton, Newmarket, Oxford, Orangeville, Aurora, North York, Etobicoke, Caledon, Whitchurch-Stouffville, King City, Schomberg, Mississauga, Oakville, Streetsville and Toronto.