Most provinces and territories have their own legislation when it comes to family law and how to deal with the matrimonial home. Though some province/territories are similar when it comes to dealing with matrimonial homes, there are differences.
The provinces/territories usually have a family law act or a matrimonial property act, or both that outline how matrimonial property is to be divided among the parties.
If the home the parties lived in prior to their separation and divorce was their family home in which the spouses lived together, this home will be divided between the spouses.
Note that in most provinces/territories the division of the matrimonial home can only occur if the parties have been legally married. Often it’s not enough to be a common law/domestic couple and have cohabited in the home.
The law sees the institution of marriage as an equal partnership and therefore if a married couple lived in a home and used it as their matrimonial home, the law usually wants to see an equal division of matrimonial property.
However, unlike other matrimonial property there are special rules for the matrimonial home – usually that means regardless of who owned the home before marriage, etc., the home will be divided equally.
Matrimonial home doesn’t necessarily have to mean a house, it could also mean:
- A part of a house;
- A part of a business that is being used as a house;
- A mobile home;
- A condominium; or
- A suite.
Can I stay in the house if my ex-spouse’s name is on the title?
For the purposes of the division of assets, it’s immaterial under whose name the matrimonial home is registered.
That means as both parties have rights when it comes to the property, nothing can be done to the home without the other spouse’s knowledge or consent.
That also means both parties have the right to live in the home. However, that is not always feasible if the parties cannot get along. In this case some provinces have an “exclusive possession order”.
This order gives one spouse to have the right to remain in the house while the other spouse has to leave. However, even where the order is made that doesn’t mean the spouse who is ordered to leave the home gives up his interest in the home.
It’s very important to look at the legislation of your own province or territory when it comes to the matrimonial home and go over your entitlements, and any other issues, with a family lawyer.
Property Division in a Divorce in Canada
Dividing property at separation: married Couples Alberta