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Matrimonial Home

What is a matrimonial home?

The matrimonial home is defined in s.18 of the Family Law Act as “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinary occupied by the person and his or her spouse as their family residence.” It is possible to have more than one matrimonial home as long as both or one spouse considers that property to be their family residence.

Property bought or used only for investment that are rented out would usually not fall under this category.

Do I have a right to the house even though I am not on title?

  • Under s.19 of the Family Law Act, both spouses have an equal right to possession of a matrimonial home.

This right exists even if only one of the spouses is registered on title of the house.

However, despite that right under s.24 of Family Law Act a court may make an order granting one spouse exclusive possession of the matrimonial home or part of it for a period stipulated by the court.

In order to determine exclusive possession the court is required to look at the following:

  1. Best interest of the child or children who are affected;
  2. The existence of any property and support orders;
  3. The financial positions of both spouses;
  4. The availability of other affordable and suitable accommodations;
  5. Separation Agreements;
  6. Any history of violence.

I am not on title of the matrimonial home can my spouse sell or acquire a mortgage without my consent?

NO, s.21 of the Family Law Act forbids a spouse who is registered on title to dispose or encumbering an interest in the matrimonial home unless:

  1. The other spouse consents; or
  2. The other spouse has released her or his rights under a Separation Agreement; or
  3. A court orders otherwise.

We are not legally married we are common law spouses, my spouse is the only one on title of the matrimonial home do I have any rights to it?

In short no you do not, common law spouses do not have the same property protection or equalization as do legally married spouses. The house belongs to the person that is on title.

However, it is possible to prove a constructive trust if you prove that you have contributed by way of work or money to the acquisition, preservation, or maintenance of the property.