What is a Matrimonial Home?

The matrimonial home (also known as the marital home, family home or family residence) is a family law concept. The term and laws governing matrimonial homes vary from province to province. The matrimonial home is deemed as part of the assets that make up “matrimonial property,” or “family assets.” Even in Quebec which has a distinct legal legacy, there is a parallel concept called “family patrimony.” This includes the family residence and personal property owned by either spouse that is in the list of programmed assets.
This article is intended to enlighten Canadian couples and families about the concept of the matrimonial home, some insights on the Canadian Matrimonial Property Law and points regarding exclusive possession of the matrimonial home.

What is Matrimonial Home Status?

The use of a residence by the spouses or their children creates matrimonial home status. This status restricts the owner’s power to deal with the property. The owner of a matrimonial homeowner cannot sell or mortgage it without the permission of the other half even if that other spouse has no ownership rights to the property.
Matrimonial home status also affects the right to occupy the home. If the owner’s spouse dies, the surviving spouse may have special rights to live in the home, even if that spouse never had any ownership rights to the home and the title is passed to someone other than the surviving spouse. These are important limitations when it comes to estate planning for the owner spouse.
If there is a failure of marriage and the matrimonial home is sold, the non-owner spouse may be given special rights to a portion of the proceeds of sale, even if the home was inherited during marriage or owned by the other spouse before marriage. A matrimonial home is different since the entire value of the matrimonial home may be included in the couple’s family assets even if one spouse owned it before marriage. In contrast, the division of the matrimonial home’s value at death or on marriage breakdown will not take into account that portion of the value in the home that was brought into the marriage, or was acquired by gift or inheritance during the marriage.
Lastly, if one of the spouses dies, the surviving spouse has the same claim to an equalization payment from the deceased spouse’s estate that he or she would have had if the marriage had broken down. If the family’s major asset was the matrimonial home, it could be necessary to sell the home in order to satisfy the surviving spouse’s claim for an equalization payment. Importantly for planning purposes, spouses can usually agree by contract to alter or give up their rights attached to any particular property. The contract may be a pre-nuptial agreement, a marriage contract, or a separation agreement.
In first marriages, few spouses would want to give up their rights to the matrimonial home or to any property division other than that provided by law in their province. However, the discussion often arises in second marriages, especially when each spouse has adult children. Each spouse usually wants to make sure that if they die the other spouse is taken care of, but will also want to make sure that any assets they brought into the marriage pass to their own children, and not to their spouse’s children. If the couple lived in a home that one spouse had brought into the marriage, and if the owner spouse died first, the surviving spouse could have rights to the home that could frustrate the deceased spouse’s plans to pass the property to his or her children. One way to address these problems is to have the spouses sign a matrimonial agreement where they each give up their rights to the other spouse’s property in exchange for a life insurance policy death benefit payable at the other spouse’s death.

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What does the Canadian Matrimonial Property Law State?

The Canadian Matrimonial Property Law maintains that matrimonial property is property owned by one or both of the married spouses. Under the old common law system system, married women did not own matrimonial property. Upon marriage, husband and wife became a single person in the eyes of the law. However, only the husband has the right to administer the matrimonial property. All Canadian provinces have long since corrected this injustice by passing legislation which allows married women to own property as if they were single.

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What is the Meaning of Exclusive Possession of the Matrimonial Home?

In the event of a legal separation, one of the complicated points of contention is the matrimonial home. It pays to be familiar with legal provisions to resolve all intricacies promptly.
Both spouses have equal rights to come in and get out of the house as they please. A judge may take this right away from one of the two parties but it is not that easy to obtain exclusive possession of the house. The court will not grant you exclusive possession of the house just because you want your spouse out of the matrimonial home. There must be a justifiable reason such as domestic violence to give courts reason to throw out either one of the spouses. Otherwise, traumatic situations or dislike for each other may warrant granting of exclusive possession of the house. When the time comes that the court has to make a decision as to who will be given exclusive possession, the following factors should be given due consideration: domestic violence, either of the parties can stay with family or friends and the best interests of the children.

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Adherence to the Laws

All told, the laws on matrimonial homes are both complex and strict. Both spouses will have to follow strictly these laws to avert any unpleasant consequences. It is important for each of the parties concerned to review with awareness the provisions of the salient points discussed in the Canadian Matrimonial Property Law and Exclusive Possession of the matrimonial home.

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