When there are members of the family discussing divorce, this ominous word doesn’t just affect the couple thinking or planning their separation. It takes its toll on everybody; family members and even friends. Members of the immediate family instantly counsel the couple on many things.
But when a couple start to bring this word into the discussion table it means they already exhausted every possible avenue towards settling their family issues. Well…polling everything that friends and family discuss with the divorcing couple during those trying pre-divorce times, the subject of dividing up the couples’ material possessions hardly ever come up.
However many divorce lawyers admit that clients came up with the right number of questions about separation of material possessions at the earliest part of their communication to cover everything. It is important for the couple to know that in Canada there are laws like the Ontario Family Law Act, which dedicate unique provisions to issues regarding matrimonial home ownership after divorce or separation.
Under the Family Law Act the matrimonial home is furnished with special status: both spouses are granted equal rights to its possession. These equal rights lasts even after separation.
Unless; the two parties has already reached and agreed on a separation agreement.
Or, until; there is an order from the court, that establish that one of them has the exclusive right to its possession, irrespective of who is the legal title owner.
There are many laws governing divorce and the eventual separation of the matrimonial home in Canada and each province has their own set of laws. As a couple on the process of filling for a divorce you are well advised to get the services of a litigation lawyer or to contact a real estate agent, when neither of you want to own the matrimonial home after your divorce or separation become official. The ones covered here are for the province of Ontario.
Points that Make the Matrimonial Home Unique that Couples Filing for Divorce have to Consider;
In Ontario, Canada; once a decision to end marriages are finalized and sealed by law, the Family Law Act directly activates a provision on property-division. The property will now be equally divided between spouses, bound by specific exceptions and rules, a few of them are significant rules on separation of matrimonial homes. You need lawyers and real estate agents well versed on Canadian Laws and precise laws and acts specific to a province to help you iron these exceptions out.
The following aspects make the matrimonial home unique.
1. The act stridently defines the matrimonial home.
The term applies to any house/home owned or where the spouses and their family live in together up to the day of separation. Including all types of housing like mobile homes and condominiums, as long as it is occupied as family residence. Likewise, the term does not limit the number of homes the spouses own: providing it meets legal definition, a second home, like a regularly used family cottage still counts as a matrimonial home subject to special rules of the Family Act.
2. After marriage the original ownership of the home becomes immaterial.
If one of the spouses owns a home before the marriage and that home becomes the family’s domicile, under the Ontario Family Act it is a matrimonial home, even if the title is held by one of the spouses, and to whomever of them it was registered to prior to marriage.
3. Both spouses are declared by law to have equal rights to the matrimonial home once it is designated a matrimonial home, and are equally entitled to possession of it upon separation.
Neither of the spouses can legally exclude the other from the matrimonial home once they separate, who owned the home prior to marriage is beside the point.
4. When dividing assets on separation, there are special rules for matrimonial homes.
The Family Law Act explicitly declares that the gross/net value of a matrimonial home need be shared equally upon their separation. A special clause of rule applies to it, different from partitioning of other conjugal property. Like that on the ones about how upon their separation each spouse is entitled to take away the marriage-date value of any property each of them took into the marriage.
5. Full consent from both spouses have to be freely given before a matrimonial home can be sold.
Be careful when attempting to sell the home without the other spouse’s consent, any unsubstantiated purchase will be deemed meritorious of a legal dispute of interest by the second spouse, or a court may withheld the deal under the right conditions. This same rule applies to an attempt to mortgage or in any way encumber the home without the other spouse’s awareness and consent.
Whenever a consensus is hard to reach, then either of them may apply for a court order to sell the home.
6. Special status.
There is a special custody status under Ontario Law that protect the matrimonial home. There are established things that spouses cannot and can do. For the most part, one spouse is not allowed to unfairly do any of the following, without the other spouse giving consent:
• Bar the other spouse out of the matrimonial home by changing locks;
• Sell or mortgage or re-mortgage the home.
Court Orders Affecting Ownership of Matrimonial Home for Divorcing Couples
An Ontario court depending on the nature and objective of the family litigation, can or is allowed to make Orders that can affect each spouse’s rights to the matrimonial home. An authority granting the court powers in this regard is pursuant to the Family Law Rules, the Ontario Family Law Act, and the Courts of Justice Act.
There are different Orders that a family court can make ruling spousal rights to their matrimonial home, when the spouses cannot agree, the court in such cases has the power to exercise its mandate, and that is to make the compulsory Order.
Courts are not careless of their powers and they don’t take their powers lightly; rest assured everything will be taken into consideration, the court is methodically decreed under the Family Law Act to take into account the following:
• To take the best interests of the children who may be affected by the order.
• Any existing court Orders relating to other existing orders like Orders for support besides the ones governing the family property.
• The monetary position of both spouses;
• Any previous agreement written as ordered by the parties;
• The ready availability of other suitable and affordable accommodations; and
• Violence or act of excessive passion committed by a spouse against the other spouse or children.
Also the rights of third parties don’t have to be omitted; there can be third parties that own some form of interests in the matrimonial home. There may be a mortgage on the home, which a bank can default is one example of third party interest.
There are different approaches to getting a divorce in Canada. There are lawyers that counsel their clients to go for an amicable separation agreement where the divorcing couple have to agree on some terms and put everything in writing with the help of lawyers without going to the court.
And there are also different approaches to a legal separation of your material possessions that will benefit you both monetarily. One part can be settled by the help of lawyers and the other can only be settled with the help of a real estate agent. Each of these services you will be needing will have to focus on different aspects of your lawful separation. Well, you can’t go wrong with the professional real estate agents offering their services around Ontario. These real estate agents serve the Ontario area Like Milton, Mississauga, Oakville, and Toronto.
BUY SELL INVEST IIN REAL ESTATE VIA PAT KAKAR & PAM Team