Matrimonial Homes and Divorce: Key Considerations for Couples Splitting Up

David Anthony, Jeffrey Ordon, and Tyler Sparrow-Mungal (Student-at-Law) from Anthony Family Law in collaboration with Bram Sandow, Divorce Real Estate Made Simple*

Defining the matrimonial home plays a pivotal role in many family law cases. Understanding how matrimonial homes are treated under the Family Law Act in Ontario during a divorce or separation is essential for making informed decisions and ensuring that your interests are protected.

What is the Family Law Act?

In Ontario, the Family Law Act is the law that governs “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership,” including but not limited to matrimonial homes, support, and property.

What is a Matrimonial Home?

According to the Family Law Act, for a property to qualify as a matrimonial home, a spouse must have an interest in the property and, 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.

Can You Have More Than One Matrimonial Home?

Yes, a couple can have more than one matrimonial home if the residences are all “ordinarily occupied” by the spouses at the time of separation. Whether a property qualifies will depend on the circumstances of each case.

How Do I Designate a Matrimonial Home?

One or both spouses may designate property owned by one or both as a matrimonial home online with the Ontario land registry office. 

Designation by One Spouse:

If only one spouse designates a property as a matrimonial home, any other property that qualifies as a matrimonial home under Section 18 remains a matrimonial home.

Designation by Both Spouses:

If both spouses designate a property as a matrimonial home, any other property that is a matrimonial home under Section 18 will stop being a matrimonial home. 

What Happens if the Matrimonial Designation is Cancelled?

When both spouses designate the same home as a matrimonial home and then it is cancelled, Section 18 applies again. Any property that qualifies as a matrimonial home under Section 18 will again be considered a matrimonial home.

Can I Sell or Mortgage the Matrimonial Home

You cannot sell or put a mortgage on the matrimonial home without one of the following: 

Consent: Your spouse must agree to the transaction; 
Separation Agreement: Your prior spouse must release their rights to the property in a separation agreement;
Court Order: A court must authorize the transaction or release the property from the application of the Family Law Act;
Matrimonial Designation of Alternate Property: The existence of another property that is currently designated as a matrimonial home by both spouses

Can My Spouse Sell or Mortgage the Matrimonial Home?

If a spouse tries to sell or mortgage the matrimonial home, the transaction may be set aside by an application to the court if they do not fulfill the criteria outlined above. However, the transaction will not be set aside if the person who acquired an interest in the property:

acquired it for value;
acted in good faith; and 
was unaware that the property was a matrimonial home at the time of acquiring it or making an agreement to acquire it.

Why Should I Designate a Matrimonial Home?

Designating a property as a matrimonial home can protect you from having it sold or mortgaged without your knowledge, as this designation appears on the property’s title. This designation will inform anyone dealing with your spouse that the property is a matrimonial home and requires them to meet one of the four criteria listed in the Family Law Act before they can list the home for sale or put a mortgage on the home.

Considerations During Relationship Breakdown

Who Owns the Matrimonial Home?

When a marriage breaks down, one of the most contentious issues can be who gets the matrimonial home. The spouse that holds title cannot simply force the other spouse to leave when the relationship breaks down. According to the Family Law Act, both spouses have an equal right to possession of a matrimonial home. Even if only one of the spouses has an interest in the home (i.e., is on title), the other spouse still has a right to live in the home.

Who Can Live in the Matrimonial Home?

You can apply to the court to decide whether one spouse should be given exclusive possession of the matrimonial home or part of it. The court will determine for how long, alongside some other conditions. It can also release other property that is a matrimonial home from the application.

To determine whether to make an order for exclusive possession, the court will consider: 

The best interests of the children affected;
Any existing court orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
The financial position of both spouses;
Any written agreement between the parties;
The availability of other suitable and affordable accommodation; and
Any violence committed by a spouse against the other spouse or the children.

The court will not consider the ownership of the matrimonial home, its contents, or the possessory rights involved. Whether an order is made for exclusive possession of the matrimonial home will depend on the circumstances of each case.

Conclusion

Recognizing the significance of the matrimonial home in family law is essential. Understanding how the Family Law Act applies to matrimonial homes will equip you to make effective decisions and protect your interests throughout the divorce process.

Apart from children, the matrimonial home is often one of the most fought-over issues in a divorce. Hiring a skilled family law lawyer can help. For more information on your rights in a separation or divorce, contact Anthony Family Law using the chatbot on the corner of this page.

About Divorce Real Estate Made Simple*

Bram Sandow and Adam Linden, the experts behind Divorce Real Estate Made Simple, recognize the emotional toll divorce can take, especially as it involves significant life changes. Their exceptional team helps to streamline the process of selling your real estate assets and provides unparalleled support during this challenging period. As Certified Divorce Specialists, these industry experts pride themselves on offering a customized approach that sets them apart: they blend decades of experience and market knowledge, coupled with compassion, confidentiality, and unwavering dedication to guide you through the complexities of separation and divorce. With Bram and Adam as your trusted partners, you’re not just working with top-producing REALTORS®, you’re gaining allies committed to easing your journey through this difficult and transitional phase.

*collaboration with Divorce Real Estate Made Simple is not an endorsement of their services and should not be used or considered as a recommendation.

This article was previously published on June 19, 2024, on Divorce Real Estate Made Simple’s website. Publication on Anthony Family Law website is with full permission.

The materials contained in this article are intended to provide general information and comment about recent developments in the law and related practice points of interest. The information provided is not intended to provide legal advice. For specific legal advice, please contact Anthony Family Law.

Matrimonial Homes and Divorce: Key Considerations for Couples Splitting Up