Who Gets the House? Understanding Your Rights to the Matrimonial Home in a Divorce

For many separating couples, the family home is the most significant and emotionally charged asset. In Ontario, the law outlines specific rules for how the matrimonial home is treated during a divorce. Whether the home is jointly owned or in one spouse’s name, it is subject to special treatment under the Family Law Act.

What Is the “Matrimonial Home”?

Under Ontario’s Family Law Act, the matrimonial home is defined as every property that the spouses ordinarily occupied as their family residence at the time of separation. This can include a house, a condominium, a cottage, or any other type of property used as the family’s primary residence.

Equal Right to Possession

One of the unique features of a matrimonial home is the equal right to possession:

• Both spouses have an equal right to live in the home, regardless of whose name is on the title or who purchased the home.
• Neither spouse can force the other to leave without a court order or mutual agreement.

This rule applies only to married couples. Common-law partners, who have different rights from married couples, do not have the same automatic right to possession.

What Happens When the Matrimonial Home Is Owned by One Spouse in Ontario?

One of the most frequently asked questions regarding the matrimonial home is what happens to it if it is owned by one spouse, specifically in Ontario? Even if the matrimonial home is legally owned by only one spouse, the other spouse (if married) still has important legal rights.

1. Right to Possession: Both spouses have an equal right to live in the home, regardless of whose name is on the title. The titled spouse cannot evict the other without a court order.
2. No Deduction for Pre-Marriage Ownership: If the titled spouse owned the home before marriage and it remained the family home until separation, they cannot deduct its value at the date of marriage when calculating net family property. The full value of the home is subject to equalization.
3. Property Ownership Remains with Titled Spouse: The spouse whose name is on the title remains the legal owner unless a court orders a change in ownership or a buyout occurs.

This often creates confusion for titled spouses who assume sole ownership gives them greater legal control after separation. In reality, family law prioritizes fairness and shared contributions during the marriage.

Property Division and the Matrimonial Home

In a divorce, the majority of property is divided through equalization of net family property. However, the matrimonial home is treated differently:

• If one spouse owned the home before marriage and it was still the family residence at separation, they cannot deduct its value at the date of marriage when calculating net family property.
• As a result, the full value of the home is subject to equalization, even if one spouse brought it into the marriage.

This rule often surprises spouses who believe they will retain the home simply because they owned it before the marriage.

What Are Your Options for the Home?

When it comes to resolving ownership of the home, separating spouses generally have several options:

1. Sell the Home and Split the Proceeds: This is often the most straightforward option. Proceeds are divided according to the equalization process or negotiated agreement.
2. One Spouse Buys Out the Other: One spouse pays the other an agreed-upon share and keeps the home.
3. Co-Ownership: In rare cases, former spouses may continue to own the home jointly for a period of time (e.g., for the sake of children remaining in the same school district).
4. Court-Ordered Sale: If spouses cannot agree, the court may order the sale of the home.

Exclusive Possession Orders

In cases of conflict, a spouse may apply for an exclusive possession order, which temporarily grants one spouse the right to stay in the home and requires the other to leave. This is often pursued in situations involving domestic violence or serious disputes.

Courts consider factors such as:

1. The best interests of any children involved,
2. Any history of family violence,
3. Financial circumstances of both spouses,
4. The availability of other housing.

What About Mortgages and Title?

1. If both spouses are on the title, they are both legal owners and must agree on what to do with the property.
2. If only one spouse is on the title, the other still has a right to possession (if married), but not ownership.
3. Both spouses remain responsible for the mortgage, even after separation, unless one refinances or removes the other from the agreement.

How Nihang Law Can Help

The matrimonial home plays a central role in most divorce proceedings and is governed by special rules under Ontario law. Whether you’re concerned about staying in the home, buying out your spouse, or selling and dividing the proceeds, it is important to understand your rights and responsibilities.

At Nihang Law, we guide clients through the complex issues surrounding the matrimonial home with clarity and compassion. Contact us for a confidential consultation to understand your options and protect your interests during separation or divorce.