Separation and Divorce – Who Owns the Home?

Mar 22, 2022

During separation mediation, a key question is who owns – or profits from – the home. And while the answer seems like it should be simple, dividing property, and in particular the family home, can be tricky.

In today’s runaway real-estate market, home ownership, and the decision whether to sell the family home, has become increasingly important. And despite what you may believe, matrimonial homes are not always split equally.

What is Your Situation?

Let’s start with a few important distinctions:

• Married vs. Common-law (Cohabitation)

There are different rules regarding property division depending on whether you are legally married or in a common-law relationship. In Ontario for spousal support purposes, you are considered in a common-law partnership if you have been living with your partner continuously for at least three years, or if you have a child together and have lived together in a relationship of some permanence.

• Separation vs. Divorce

Separation occurs when a couple – married or common-law – decide to end their relationship and live apart. Note that “living apart” can still be in the same home. Divorce is the legal ending to your marriage. In most cases, a divorce can take place one year after the couple has officially separated.

• Matrimonial Home

A matrimonial home is the property or properties used as a family home at time of separation. There can be more than one matrimonial home. Only married couples can have a matrimonial home (not common-law partners). The matrimonial home can be a property you own or lease.

Separation Mediation – Home Ownership for Married Couples Who Separate

When a married couple separates, one of the first things they must do is equalize the value of their property. This means adding up their total property acquired during their marriage and subtracting their debts (such as credit card debt, mortgages and car loans).

During separation mediation, the matrimonial home is simply included in the assets to be divided as part of the equalization payment. Even if only one spouse is on the title, or if the matrimonial home was inherited or given as a gift.

In a volatile housing market like ours, the date of the separation becomes very important, as assets are valued as of the date of separation, unless they are jointly owned.

A matrimonial home is not always shared equally. This is a myth. It is simply another asset to be equalized.  However, if one of the spouses brings in a home to the marriage that is still the family residence at separation, he or she does not get credit for the value of the home on the date of marriage.

As previously mentioned, however, regardless of who “owns” the home, you are both entitled to live in the matrimonial home after separation unless a court orders otherwise.

Living Together While Separated

Many more couples are choosing to live together after separation, due to today’s high housing prices, the difficulty financing two residences, and/or finding a new place to purchase or lease.

The right to stay in the matrimonial home includes if you are renting. Both ex-partners have an equal right to stay in the home, even if one partner is the only tenant listed on the lease.

So it’s not like you see in the movies, where one partner throws the other’s possessions on the lawn and doesn’t let them back in the house. Neither spouse can lock the other out, or refuse to let the other into the home without an agreement or court order.

However, when you get divorced, if you aren’t on the title as owner of the matrimonial home or on the lease, you lose your right to stay in the home. If home ownership and access is a concern to you, be sure to consult a lawyer regarding your rights to the property prior to signing divorce papers.

Separation Mediation – Home Ownership for Common-law Couples Who Separate

Separation mediation for common-law relationships can be more straightforward, though it can also feel less equal. Common law couples are not automatically required to split property acquired when they lived together – the property legally belongs to the person who brought it into the relationship or owns it. That means the person whose name is on the title of the home owns it. If their name is on the lease, they are entitled to stay in the rental property.  In some cases, a spouse can seek an interest to property in the other’s spouse’s name but this can be difficult and it depends on the circumstances of each case.

If you contributed jointly, both may have a right to a portion of the property, however if you cannot come to terms during separation mediation, you may need to go to court to settle on if and how it will be split.

Protect your Rights During Separation Mediation

The experienced team at the Kelly D. Jordan Family Law Firm understands how important your home is to you. They use their legal expertise to find creative solutions to the legal challenges that arise during separation mediation. If you’re worried about protecting your property, want to ensure fairness while separating, or simply have questions about how it all works, email our offices to book an appointment or call us today at 647-277-5023.

Resources:

Government of Ontario: Dividing property when a marriage or common law relationship ends
https://www.ontario.ca/page/dividing-property-when-marriage-or-common-law-relationship-ends#section-3

Steps to Justice – We’re married. Who gets to stay in our home if we separate or divorce?
https://stepstojustice.ca/questions/family-law/were-married-who-gets-stay-our-home-if-we-separate-or-divorce/