Beachside condo in Hawaii or whitewashed cottage on Wasaga Beach — who owns property you buy as a couple or before you marry?
Axess Law can draft prenuptial agreements or marriage contracts if you’re concerned about your matrimonial home rights. But first, what to know about buying matrimonial homes for about-to-be-weds, newlyweds, and couples who split.
What’s Considered a Matrimonial Home – Ontario
You think of your matrimonial home as the residence you share with your legally married spouse. But every property you buy or have an interest in can be matrimonial homes in Ontario as long as you normally spend time there together.
You can have as many matrimonial homes as you like. Plan carefully though for what will happen to the family home, cottage or vacation condo if you separate, split or pass away before your spouse. Disprove a home is matrimonial — see section 20(3).
Your spouse could ask Ontario family court for exclusive possession, leaving you to find another home while you work out how you will divide assets you acquired as a couple.
What You Need to Know
- Homes you purchase while single become shared matrimonial assets when you marry.
- Homes you inherit or receive as gifts are exempt, as long as you don’t co-mingle them with joint assets.
- Unlike other assets, the value of matrimonial homes pre-marriage is not deducted from net family property. Upon divorce, a home’s current value is divided equally with your spouse — unless you agreed otherwise in a prenuptial agreement or marriage contract.
- Assets otherwise exempt from property division, like personal injury settlements, can be lost if used to pay a matrimonial home mortgage.
- As long as it is treated as a joint asset or as agreed upon in a marriage contract, a sale of a matrimonial home is allowed pre-separation or after. Your spouse could block you temporarily by getting an exclusive possession order, forcing you into court or mediation to decide its fate.
Dividing Property When Your Marriage Ends
Couple’s assets are equalized upon divorce.
For instance, you could be ordered to compensate your spouse to ensure you leave the marriage with a 50-50 split or wind up selling the matrimonial home and sharing the profits.
To calculate your net family property, deduct the total value of your personal assets minus debts on the day you separated from their value minus debts on the day you married.
Exclusive Possession and Ownership Rights
If you and your partner have decided to separate or even divorce, you can often share matrimonial homes. Important things to know:
- You may continue to live in your matrimonial home by living separately within your home, while leading separate lives. For example, you could choose to live only in part of the home, like a basement rental suite.
- Married couples have a right of possession, known as “the right to occupy the property.”
- In law, both you and your spouse have equal rights of possession to matrimonial homes. This means your spouse cannot force you to leave the home without either a signed agreement or court order.
- You or your spouse cannot change the locks or remove anything from the home — even your own possessions — without the court’s permission.
- But you and your children can live in the home while a legally binding separation agreement or property division is being decided. Kid’s guide to separation and divorce.
Axess Law lawyers explain exclusive possession so you know what to do if your spouse applies or you want to stay in the home with your children or by yourself. Our lawyers draft court applications for uncontested divorces, or for other claims, refer you to trusted legal partners. Represent yourself in Ontario family court.
Common Law Couples and Property Rights
Living common law? That’s another matter. Unless you are on the property title or relied financially on a partner who died, you lose your rights to the family home when you leave. You can ask family court if you can live there without your spouse while you are separating, but it may not be granted.
Independent Legal Advice on Matrimonial Homes
Our licensed family lawyers can give you independent legal advice if you’re uncertain about matrimonial home ownership rights. You may want confidential advice about options if your relationship breaks up or how to include your homes in a prenuptial agreement or marriage contract.
We meet with you separately or together to discuss joint tenants vs tenants in common arrangements that determine how your assets are divided if you separate, divorce or die. Couples who have been married before can have tangled relationships with ex-spouses or adult children. It’s worth your time to plan who is on the property title or inherits assets.
You get a certificate of independent legal advice (Ontario) you can show a family court judge if property division becomes an issue or you dispute what happens to the matrimonial home in a deceased spouse’s Will.
If your marriage dissolves, Axess Law licensed divorce lawyers (Toronto area and Ottawa) can apply for a simple or joint uncontested divorce. Simple or joint divorces can be arranged quickly, and for less than using traditional legal services when you agree ahead of time on property division of matrimonial homes.
Documents We Need
If you’ve decided to go ahead with buying a matrimonial home, bring valid Ontario photo ID and your signed agreement of purchase and sale to complete your real estate transaction. We liaise with your mortgage lender and the seller’s lawyer to close the deal or review draft agreements if you’re just thinking of making an offer.
Affordable Real Estate Lawyers, Anywhere You Are
Access lawyers for less in Greater Toronto Area, Ottawa, or anywhere in Ontario when you buy, sell, or transfer property. Axess Law’s flat fee real estate lawyers are affordable, and our rates are all inclusive (excluding taxes, disbursements, and third-party charges). Axess Law offers you only the legal services you absolutely need. Your final invoice includes no surprises or hidden charges. Your itemized statement of adjustments is explained when we deliver it, and we answer any questions you have about it.
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