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When Your Matrimonial Home is a Gift

You could be couch surfing with friends if your ex gets the house when you split. Your destiny depends on who owns the house and if it was a gift.

Whatever Happened to Your Perfect Marriage?

Things were going well for you until you separated, you say. You had a nice home in a good neighbourhood, a gas barby in the backyard and a two-car garage out front. On top of it all, your wife or partner was a loving, devoted mother to your childen. How did it all go so wrong?

Love and Marital Licence 

Things happen. Around 38% of Canadian married couples separate or divorce, usually in the first 14 years. What matters now is how you’re going to get off the couch and back into your home, if you are. Who owns the home could decide that for you.  

Who Owns Your Matrimonial Home   

Naturally, only legally married couples can own matrimonial homes. Matrimony is the state of being married and although common-law marriages are recognized by the Family Law Act, that doesn’t apply to their home. When you’re married, on the other hand:

  • you have equal rights to matrimonial homes located in Ontario
  • even if your spouse owned the home premarriage
  • or they are the only one on the property title.

Only the residential part of a home qualifies. For example, a house on farmland or residential part of a commercial property are included, but not other parts.

Living Separate and Apart in the Same Home

Good news! You may not have to couch surf. if your spouse or ex is agreeable, you can live in your matrimonial home after separation or divorce. It may not be the friendliest of arrangements, but that’s up to the two of you. Only if your spouse gets exclusive possession, usually because of a divorce order, violence, ongoing conflict or because it’s in the best interests of the children, can you be forced out. Until or if that happens, you can live in the same home while separated as long as you don’t fraternize by having sex, eating or cooking together or going out as a couple. 

Who Lives Together When They’re Separated?

Plenty of couples do. Caring for children, saving money, between jobs or no real place to go — any reason can make sense. Your spouse or ex can’t lock you out, change the locks or prevent you from staying unless you agree to leave or they have a court order, separation agreement, you get divorced or the rental lease ends.

Having Multiple Matrimonial Homes

Yes, you can have more than one matrimonial home. Any home, owned or rented, where you regularly spent time together as a family or couple before separation can be matrimonial. That includes your Etobicoke townhouse, income property on Lake Huron and cuddy cabin cruiser in Whitby. A property you moved into by yourself because your marriage was failing may be a matrimonial home, as long as you would have shared it as a family.

Rental Homes Are Matrimonial

Your right to live in your matrimonial home extends to rentals. You may not own the home, but as a couple you can decide who gets to live there.   

Divorce Changes Everything

Moving out doesn’t affect your ownership or property rights. Of course, once your divorce is final, you’re no longer legally a spouse. You guessed it. No spouse, no matrimonial home. Relax. Most divorces conclude by either spouse buying the matrimonial home or selling it and sharing the proceeds. 

When Your Home is a Gift

Fabulous. Your spouse’s parents gave you a home as a wedding gift. Who wouldn’t be over the moon? Now that things aren’t working out, check the fine print. They may have gifted the home to your ex, not both of you. Provided your in-laws expressly stated the home was a gift to your spouse only, you may be out of luck. 

Selling a Matrimonial Home That’s a Gift

What’s theirs is theirs and when a gift belongs to your spouse alone, you won’t get any share of the original value if they sell it or transfer the gift to another asset. But if your spouse uses the sale proceeds to buy a new home where you live together, you could claim the new asset is net family property.

What Happens to Interest or Income From Gifts

Again, a rich uncle has to state (say in a will, email or letter) if interest or income from their gift is intended for your spouse’s benefit alone. Otherwise, the interest or income may be included in net family property. More riches for you.

How Mingling Gifts Affects Net Property

Your spouse sold her home and put the profits into jointly owned stocks. Now you’re in the money. By mingling the sale proceeds with joint assets, she made what was hers both of yours. Using gifted money to buy a home can also tip the scales. If your spouse dipped into a joint bank account to pay for the home, even if the money she used was a gift, the onus is on her to prove it.

Watch Those Prenups and Marriage Contracts

Making a vow to go your separate ways in a prenup or marriage contract could leave you out in the cold again. Signing a marriage contract or prenuptial agreement makes it a legally valid document. Don’t give the house away unless you mean it.

Your Home Goes Corporate

Your spouse owns the majority shares in a corporation that has legal title to your home. Under the Family Law Act, she owns the home. Better luck next time.

Get Your Share of the Matrimonial Home

Axess Law’s Ontario family law lawyers help you make your case for a share of the matrimonial home when you divorce. Talk to a divorce attorney anywhere in Ontario via online video conference 7 days a week, day or evening. Make an appointment by dialing 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form. In person meetings with family lawyers are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

Photo by S. Hermann & F. Richter|Pixabay.

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