Selling The Matrimonial Home

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Separation is one of the hardest, life changing experiences you and your family can go through. To add fuel to the fire in a lot of cases the family home needs to be sold.  This can be gut-wrenching. At Divorce is Simple our real estate team is there to treat you with kid gloves and help you every step of the way with care and deep emotional understanding of what your needs are at this difficult time. Under the Family Law Act, the full value of a matrimonial home must be shared upon separation. This forms an exception to the normal rule that applies to the division of other matrimonial property, i.e. that on separation each spouse is entitled to deduct the marriage-date value of any property he or she brought into the marriage.

Considerations Prior to Selling the Home
 

1.  Where will you go?

2.  What will be the cost to you of maintaining the expenses relating to the home?

3.  What steps do you have to take to get the home ready for sale? Are there any major or minor repairs needed on the home?

4.  What will be costs of selling the home? Lawyer’s cost? Real Estate Commissions? Mortgage Penalties?

5.  How will selling the home affect your children?

6.  How will the proceeds of the sale of the home be divided?

7.  Are there debts, joint or otherwise, that need to be cleared from the proceeds of the sale, prior to distribution?

8.  Are there any deductions that have to be made from one party’s share of the proceeds of the sale of the home for expenses paid by the other spouse after the date of separation?

9.  Do you have an agreement with your spouse regarding custody, access, child support, spousal support and division of your property?

10. Will the proceeds of sale of the matrimonial home have to be held by the real estate lawyer because you and your spouse do not have an agreement regarding the division of your property?

The Matrimonial Home

 

If a spouse brings a home with them into the marriage and that home becomes the family residence, then the law deems it to be the matrimonial home, even though that spouse held title and was the home’s registered owner prior to marriage.

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Legally, if you and your spouse both own the property and are named on the mortgage, you will both continue to remain jointly liable for meeting any mortgage repayments, even if you choose to leave the family home. Similarly, you are obliged to meet the payments of any household bills in your name.

Once a home is designated a matrimonial home, both spouses are equally entitled to possession of it upon separation. Once the spouses separate, neither of them can legally exclude the other from the matrimonial home, no matter who owned the home prior to marriage. The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do.

 

Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:

• Lock the other spouse out of the matrimonial home;

• Sell the home;

• Mortgage or re-mortgage the home.

Can a cottage be considered a Matrimonial Home

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The definition of “matrimonial home” is generally defined by Ontario Family Law Act as being any property “ordinarily occupied” by the spouses and their family on the separation date. This can include any type of housing including condominiums and mobile homes; in some cases, the definition will even extend to cover a frequently used second-home, most often a family cottage.

What are my options?

 

The family home may be the most valuable asset that parties own. As such, decisions relating to the home may be emotionally difficult. There are really three options available to you and your spouse regarding the home:

1.  You can buy out your spouses’ share in the home and remain in the home;

2.  Your spouse can buy out your share of the home and he/she can stay in the home;

3.  You and your spouse can put the home up for sale and divide the equity in the home.

Common Law Couples

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• Common-law couples do not have statutory property rights in Ontario.

• A common-law spouse does not automatically have the right to stay in the family residence if it is not in his/her name.

• If one common-law spouse owns the home, he/she can sell or mortgage it without the other’s spouse’s permission.