When a couple separates or divorces, one of the biggest and most emotional questions is, “What happens to our family or matrimonial home?”.
In Ontario, the family home — legally known as the matrimonial home — holds special legal status. It’s not treated like any other asset because it represents much more than property. It is where memories were made, where family life happened, and often where children feel most secure.
If you are separating or divorcing, these are some questions and answers about what happens with your matrimonial home.
What Is Meant by the Matrimonial Home?
The matrimonial home is the home where you and your spouse were living together on the date you separated. Under Ontario’s Family Law Act, both spouses have an equal right to live in the matrimonial home, even if only one person’s name is on the title or mortgage.
You can actually have more than one matrimonial home. For example, a cottage that you regularly used as a family might also qualify.
Unmarried couples, however, do not have a matrimonial home under the law. Property ownership for common-law couples depends on who is on title or whether there is a written agreement about ownership or contributions.
What’s the Difference between Joint Tenancy and Tenancy-in-Common?
When you and your spouse own property together, the title will show if it is held as joint tenants or tenants-in-common.
- Joint tenancy means you both own the whole property together. If one person passes away, the other automatically becomes the full owner.
- Tenancy-in-common means each person owns a specific share (for example, 50% each). If one person passes away, their share goes to whoever they name in their will, not automatically to their spouse.
After separation, many people choose to “sever” the joint tenancy so it becomes tenancy-in-common. This protects each person’s share and ensures their portion can go to their children or heirs, rather than the former spouse.
What If Only One Spouse Owns the Matrimonial Home?
Even if only one spouse’s name is on the title, the other still has a right to live in the home. This right continues until the divorce is finalized or until a court order says otherwise.
Courts are generally reluctant to force one spouse to leave the matrimonial home unless there are serious reasons, such as family violence or safety concerns. In many cases, both people can stay in the home until a separation agreement or court order is in place.
Do You Have to Leave the Home When You Separate?
Usually, no one has to move out right away when you decide to separate. Unless a court orders it, both spouses have equal rights to stay in the home.
That said, leaving the home without legal advice can affect parenting arrangements, child support, and your negotiating position later. Always speak with a family law lawyer before making that decision.
Even if one spouse moves out or the other gets an exclusive possession order, both still have a right to the value of the home. That value is part of the overall calculation when dividing property and debts.
What Is Exclusive Possession of the Matrimonial Home?
A court can give one spouse exclusive possession of the home which means that spouse — and usually the children — can stay in the home, while the other must move out.
The court considers several factors, including:
- The best interests of the children
- Financial situations of both spouses
- Any history of violence
- Whether there are other suitable housing options
Exclusive possession can apply whether the home is owned or rented.
Who Pays the Bills?
If one person is living in the home and paying all the bills, that will be considered later when dividing property or determining support. Sometimes, one spouse may have to reimburse the other, or the court may adjust the financial settlement to reflect who covered certain costs.
In rare situations, the spouse living in the home could be required to pay occupation rent, a form of compensation to the other spouse for using the home exclusively. This depends on the specific circumstances, such as who is paying support or whether children are living in the home.
Can the Home Be Sold Without Both Spouses’ Permission?
No. The matrimonial home cannot be sold or mortgaged without the other spouse’s written consent. This rule protects both parties and ensures no major decisions are made unilaterally.
If one spouse wants to sell and the other does not, the spouse who wants to sell can apply to the court to force the sale. Once approved, the home can be sold, and the proceeds will be held in trust until both sides agree on how to divide them or a judge decides.
Do You Need a Family Law Lawyer When Determining What Happens With the Matrimonial Home?
A family law lawyer can help with every step from protecting your right to stay in the home, to negotiating how it will be divided or sold.
There are generally two ways to resolve issues around the matrimonial home:
- Through a negotiated separation agreement — where both spouses, with independent legal advice, agree on how to divide property, finances, and parenting.
- Through a court order — if an agreement cannot be reached, a judge will decide based on Ontario’s Family Law Act.
An experienced family law lawyer will ensure your rights are protected, your finances are properly disclosed, and that your agreement reflects your specific situation.
What About Common-Law Couples?
Common-law couples do not have the same automatic rights to a home as married couples. The home usually belongs to whoever is on title. However, a common-law partner may still be able to make a claim if they contributed financially or helped increase the home’s value.
These cases can be complex, so it is important to speak with a lawyer to understand what options might apply.
Do You Have Questions About the Matrimonial Home In Your Divorce? Talk to the Lawyers at Scharff Nyland Chambers LLP
Every family and every home is different. Whether you are deciding who stays, preparing to sell, or trying to protect your share of the family home, the family law lawyers at Scharff Nyland Chambers LLP can guide you through the process with compassion and understanding. Our team has extensive experience in Ontario family law, helping clients resolve property and housing matters fairly and efficiently.
Contact us today to schedule a consultation and get clear legal advice about your matrimonial home and your next steps. We offer support through our offices in Barrie, Toronto, Wasaga Beach and Collingwood. Call us at 1-866-721-5851, email reception@sncfamilylaw.com, or book a consultation through our website.
***The information provided in this blog is for general informational purposes only and should not be construed as legal advice. If you have legal questions, we strongly advise you to contact us.
