Rights to the home where you live

A matrimonial home is any property that a couple lives in and that both spouses are using when they separate. A matrimonial home is a home someone owns. Laws dealing with the matrimonial home don’t apply to homes that a couple rents. What happens to the matrimonial home depends on whether the couple is married or unmarried.

What married couples need to know about the matrimonial home
If the couple is married, each spouse has a right to half the value of the matrimonial home. This is true even if only one spouse’s name is on the deed, or if one spouse bought the home before the couple got married.

When a marriage ends, both spouses have equal rights to live in the matrimonial home. This means that you can’t be kicked out of your house because you’re separating

If you can’t agree about who should live in the house after you separate, you can ask the court to decide for you. When making a decision about who will live in the home, a judge can consider the following things:

• How much money each spouse has
• If the couple has any written agreements about the house
• What is best for the children
• If there are other places for the spouses to live
• If there is a history of domestic abuse

One spouse can’t sell the matrimonial home without permission from the other spouse. One spouse can’t take out a mortgage or lease on the matrimonial home without permission from the other spouse. If they do either of these things, the court can rule that the deals were illegal.

A couple can have more than one matrimonial home if they spend a lot of time at the property as a family. For instance, a cottage may be a matrimonial home if the spouses spent a lot of time there as a family before they separated.

If a couple can’t agree on what is a matrimonial home, you can ask the court to decide.

Property stops being considered a matrimonial home when a couple gets divorced. If you own a home you should settle questions about how to divide property before you get an official divorce

What unmarried couples need to know about the matrimonial home

If the couple is not married, the matrimonial home belongs to the person whose name is on the deed. If a couple has a cohabitation agreement, it should say who can live in the home and how the value of the home will be divided. The couple must follow what the agreement says, as long as the agreement is legal.

If you are in an abusive relationship, you may be able to stay in your home even if your name is not on the deed. To do this, you must apply for a restraining order that says your abuser must stay away from the property and that you are allowed to live in the home. It is very difficult to get this type of order. If you are in this position you should talk to a lawyer.

What couples living on-reserve need to know about the matrimonial home

If you live on a First Nation reserve, Ontario laws about the matrimonial home do not apply. Instead, the law that applies is The Indian Act. The Indian Act doesn’t mention anything about how to divide property when a relationship ends. This means that married people living on reserve don’t automatically have a right to half the value of the matrimonial home.

The inherent rights to land of Indigenous peoples are not accurately reflected in the Canadian Legal system. The federal government has said it will change the laws that affect the property rights of people living on-reserve and will allow First Nations to pass their own laws about owning and dividing land and houses on their territories.

Responsibilities for debts and loans

Whether you are married or unmarried, you are responsible for the debt you accumulate in your name, or the debt that you accumulate jointly with someone in both your names.

If you’re married the amount of debt you owe is subtracted from the total amount of your property value when you’re calculating how to equally divide property at separation.

Running up large debts in a partner’s name or in joint accounts, with or without their consent, is a common form of economic abuse. See Economic abuse in relationships.

Property rights for married couples

Property includes the money, pensions and disability benefits, real estate and other assets that the couple have.

If you are married:

• Property that you got during your marriage must be divided equally
• If your spouse owns property that is worth more than your property, they must give you half of the difference in value between their property and yours
• You can ask a court to make a decision about dividing the property. You must make the claim within 6 years after you separate and within 2 years after you get divorced.

The law says that married spouses must equally divide all of the property that the couple gained during marriage. It doesn’t matter who paid for what, or whose name is on the deed for the property. Remember that the matrimonial home is divided equally even if someone owned it before the couple got married. See Rights to the home where you live.

However, an exception to the rule around matrimonial homes is if a spouse owned a home before marriage that is used as a matrimonial home during marriage and it is then sold before the relationship ends. If a matrimonial home is sold before the relationship ends, the spouse who owned it can then count the value of the home on the date of marriage as property they owned before they were married, and that value does not have to be divided equally.

It’s helpful to know how to divide your property according to the law but it’s not always necessary depending on how you choose to resolve your issues at separation.

To calculate how to equally divide your property according to the law, follow this two-step formula:

Step 1: Each spouse must calculate their Net Family Property (NFP).

To find this amount, each spouse must add up the value of everything they own. From this amount they must subtract the value of what they owned before they got married, their debts and any inheritances or gifts.

Step 2: The couple must calculate the equalization payment amount.

The equalization payment is a payment that the spouse with the higher NFP must make to the spouse with the lower NFP. The amount of the equalization payment is half of the difference between the higher and lower NFP.

When would an equalization payment be a different amount?

In special cases a court can order one spouse to pay more or less than the calculated equalization payment. This can happen if a judge believes that the equalization amount is extremely unfair, or if the couple signed a marriage contract or other agreement.

If you have a marriage contract or another agreement, the court will order you to follow what it says unless the contract is deemed to be extremely unfair. The court will not order you to follow an agreement that you were forced to sign. If you signed a contract because you were bullied, pressured or lied to, tell the court.

Here are the things a judge will consider when they decide whether an equalization payment is fair:

• One spouse didn’t tell the other spouse about all their debts at the time of marriage
• One spouse accumulated debt by being reckless, or by purposely acting unfairly
• One spouse deliberately reduced their property, or spent their money, before the couple separated
• The NFP of one spouse includes large gifts from the other spouse
• The spouses lived together for less than 5 years and the equalization amount would give one spouse more than their fair share of the property

Property rights for unmarried couples

Property includes the money, pensions and disability benefits, real estate, and other assets that the couple owns. If you are not married:

• You don’t automatically have a right to your spouse’s property
• You can ask a court to order that your spouse give you some of their property, if you can show that what you did during the relationship made it possible for your spouse to get that property or your actions increased its value
• You must make a claim in court within 2 years after you separate

When an unmarried couple separates, each spouse keeps the property they brought into the relationship and anything they bought while they were part of the couple. The only property that is divided equally is assets that list both spouses as owners.

If a couple has a cohabitation agreement, the property will be divided according to what the agreement says. Couples can also write a separation agreement about how to divide the property. See Writing a Separation Agreement.

What happens if you can’t agree?

If a couple cannot agree about how to divide property, they can go to court and ask a judge to decide. You can ask a court to help divide your property if:

• You can’t agree about how to divide something you and your spouse bought together
• You and your spouse planned to share property that was only in one person’s name
• The property is in your spouse’s name, but you made it possible for them to buy it and you suffered financially because of this
• The property is in your spouse’s name, but you helped add to the value of that property, and you suffered financially because of this

You should be able to get some of the value of property that is in your spouse’s name if you can show how work that you did helped your spouse to get richer i.e you contributed to your spouse’s business or supported them while they were in school or advancing their career.

Women’s work in the home, including caring for children, is one thing that makes it possible for many couples to get richer. The court often recognizes this work, but fighting for this in court can be a long process and can cost a lot of money.

If you think you might have a right to some of the value of your spouse’s property, talk to a lawyer. For information on how to find a lawyer see Where to get help when you need it.

Property rights for couples living on-reserve

The inherent rights to land of Indigenous peoples are not accurately reflected in the Canadian legal system. Ontario laws concerning the division of property do not apply to land or property on reserves. The Indian Act is the law that applies to land on-reserve. The Indian Act does not mention how to divide property when a relationship ends. This means that people living on First Nation reserves have no automatic rights to property and land when a relationship ends.

The federal government has said it will change the laws that affect the property rights of people living on-reserve and will allow First Nations to pass their own laws about owning and dividing land and houses on their territories. However, this promise has not been made into law.

Article Reference: www.nawl.ca