The “matrimonial home” has a special significance in the context of a separation. The “matrimonial home” is the home that is ordinarily occupied by married spouses as their family residence at the time of separation.
The concept of a “matrimonial home” only applies to married spouses and not common law couples. The family residence will be considered a matrimonial home even if it is owned by one spouse, in his or her sole name. It is also possible to have more than one matrimonial home at the time of separation. For example, family cottages can be considered matrimonial homes if certain requirements are met.
Unless there is a court order or agreement that provides otherwise, both spouses have a right to equal possession of the matrimonial home and to live in the home. Neither spouse can sell, dispose of or encumber the matrimonial home without the consent of the other. This is the case even where one spouse is the registered legal owner of the home. This means that the owner spouse cannot do things like change the locks, require the non-owning spouse to move out, or sell the home without an agreement or court order.
Also, unlike other assets, if one spouse brings the “matrimonial home” into the marriage and the same home is still the matrimonial home at the time of separation, the spouse who originally owned the home before the date of marriage receives no credit for the equity in the house that he or she brought to the marriage when determining the equalization payment owed by one spouse to the other. This legislated exception can have a very significant financial impact on the equalization calculation.
Only if the original home is sold, and there is a new matrimonial home at the time of separation, is the spouse who brought the original home into the marriage allowed to include the value of the original home in calculating his or her assets owned on the date of marriage.
It is also important to know that while any gift to a spouse from a third party, such as an inheritance, is generally excluded from the calculation of a spouse’s net assets owned on the date of separation, if the gift is put into the matrimonial home, for example, to pay down the mortgage or renovate, the exclusion is lost. If you are contemplating marriage and already own a home, you should get legal advice to determine if you should take some steps to protect the value of the home in the event of marriage breakdown.