What happens to the matrimonial home if we cannot agree?
If the parties cannot agree on the matrimonial home, either can apply to the court. The court can order the home sold and proceeds divided, or one party to buy out the other. Both spouses have equal possession rights to the matrimonial home during separation, regardless of who owns it.
Key Points
Either party can apply to the court for an order of partition and sale, requiring the home to be sold and proceeds distributed.
Both spouses have equal possession rights to the matrimonial home during the marriage and separation, regardless of whose name is on the title.
Detailed Answer
Under Ontario Family Law Act, both spouses have an equal right to possession of the matrimonial home during the marriage — regardless of who owns the property or whose name is on title. This right continues during the separation until it is dealt with by agreement or court order.
Neither spouse can sell, mortgage, or encumber the matrimonial home without the other written consent, even if only one spouse is on title. This protection exists to prevent one party from unilaterally disposing of the family home during a divorce.
If the parties cannot agree on what to do with the home, either party can bring an application to the court. The court has the power to: order the home sold and proceeds divided; order one party to buy out the other at fair market value; grant exclusive possession of the home to one party (typically where there are children and it is in their best interests to remain in the home); or make any other order the court considers appropriate.
The court will not leave the home in a state of permanent uncertainty. If the parties cannot agree, a court order will resolve the issue.
For advice on your rights regarding the matrimonial home, contact Miao He at 647-930-6688.
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