Please note: This blog post is not to be taken as legal advice.
Separation and divorce are among the most stressful experiences a person can go through; mentally, emotionally and very often physically as well. One of the biggest contributors to the stress and everyday tension that seem to accompany the breakup of a marriage is deciding what will happen to the family home.
For most people, the matrimonial home is the largest family asset and will need to be sold in order for the division of assets. If both parties agree—or the court orders it—one spouse may buy the other spouse’s share or interest in the property, allowing the “buyer” to remain in the family home. This is desirable for many reasons, including stability for the children, sentimentality or work- or lifestyle-related convenience.
However, sometimes it simply isn’t possible. There are many reasons for this as well, usually depending on the value of the home, the financial resources of the parent who wishes to remain in the home, and of course, the level of amiability & cooperativeness between the separating spouses.
I went through this very difficult situation myself, at a time when I had none of the knowledge and expertise in these matters that I have now. I know what it’s like to have such a complex and important legal considerations thrust upon you on top of everything else you’re dealing with. And I know that finding the right person, a person you can trust with the professional knowledge and skills to advocate for you effectively, can make all the difference in the world. Short term and in the long run.
It’s not a coincidence that in my six years as realtor, it became my particular goal to help families going through separation or divorce navigate the market and as much as possible, ease the stress that comes with selling the matrimonial home.
If you’re in this position, or think you might be, here are a few things to consider before taking action. It’s unfortunate, because this is such an emotional period of your life, but the actions you take now could—and most likely will—have repercussions later that you probably won’t like. Take it from someone who knows first hand: This is not the time to be impulsive.
- Common Law status isn’t legally binding in Ontario
Whereas married spouses have a right to possess the matrimonial home that can’t be defeated without the consent of the other spouse (or a court order), Common Law status isn’t considered legally binding in Ontario.
In other words, the rules around selling the matrimonial home during or after separation doesn’t apply to Common Law couples. The person registered on the property can mortgage, sell or dispose of the home without the Common Law spouse’s consent.
- What happens if one of the married spouses moves out during separation?
The implications of leaving the matrimonial home during separation can be enormous. The general consensus is that unless you or your children are in physical danger, it is best not to leave the home until matters are resolved.
If you do leave your home, you are unlikely to be taking your children with you. This sets up a de-facto parenting arrangement and the co-parent then becomes the primary caregiver of the children. While this isn’t irreversible, the challenge of trying to regain custody can be arduous and costly.
Leaving the home and the kids may also place you in a position of having to pay spousal and child support right away.
Does individual ownership of the matrimonial home affect buy out process?
Regardless of whose name is on the official documentation and ownership for the house, as soon as a married couple share the home it becomes property of both parties. It doesn’t matter if the home was obtained through inheritance, individual purchase, or familial loans – as long as partners shared the home prior to the date of separation, it is considered the matrimonial home.
If you have more questions, or you’re looking for help with the sale of your family home, you can call me at 416-820-3006 or email daniellagoldre@gmail.com. I know exactly how stressful and difficult selling the matrimonial home can be, especially when one spouse is buying out the other for complete ownership of the home. Let me use my past experience and current expertise to ease your stress and guide you efficiently and knowledgably through the process.
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