The central aspect of most marriages is the family home. It is a place of countless memories, as well as a space that each spouse viewed as a location for comfort and solace. During a divorce, each spouse must begin the difficult task of dividing and separating the marital property, assets, and debts. This includes the tough decision regarding what to do with the matrimonial home.

This article discusses the possession and sale of the matrimonial home during or after a divorce. In most cases, the matrimonial home is the most significant asset of a marriage. It is during the most contentious period of the relationship that important decisions about the home must be made. One or both spouses may continue to live in the matrimonial home after the separation. To see the risks of living in the matrimonial home with a former spouse, see my article titled Should I leave the Family Home During Separation? In the end, either one spouse will decide to purchase the other’s interest in the home, or the home will need to be sold. The actions of each party play an important role in how this process proceeds.

The Matrimonial Home

The residence considered by law as the matrimonial home is the property which the spouses “ordinarily occupied,” or lived in, at the time of separation. This can consist of any type of property, including a condominium, mobile home or even a houseboat– provided it is occupied as the family residence. There can also be more than one matrimonial home, such as a frequently used family cottage. The only rule is the secondary or additional marital homes must have been lived in on a regular basis. Ultimately, original ownership and title to the home essentially become irrelevant at the date of marriage, as the marital home is treated as joint property.

Possession of the Matrimonial Home

Once a marriage ends, property gained during the marriage is divided equally between the spouses. The Matrimonial home is treated differently than other property gained before or during the marriage. Both spouses are expressly granted an equal right to possess or live in the home, regardless of when it was purchased, and which spouse is registered on title. This means neither spouse can exclude the other from possessing the home. This right of equal possession continues unless a Separation Agreement is executed between the parties granting exclusive possession and dictating how the home is to be dealt with, or a court order has been granted to establish that one spouse is entitled to sole possession of the marital home.

There are several factors the Court will consider when ordering exclusive possession of the matrimonial home. These include the best interests of any children living in the home, the financial position of both spouses, any written agreement between the parties, the availability of other accommodations, and any domestic violence committed by either spouse. If one spouse gains exclusive possession, they may also be required to pay occupation.

Sale of the Matrimonial Home

A matrimonial home can only be sold if both spouses consent. After both parties consent, a Separation Agreement must be created. A Separation Agreement dictates the terms of the sale and how the proceeds will be divided– and this must be done before the sale of the home.

The Separation Agreement will outline the break down of the relationship in its entirety, including the timeframe in which the house is to be listed and how bills and repairs are to be dealt with until the sale is complete. Spouses may wish to list the home for sale before a Separation Agreement is finalized. In this case, after accounting for the costs of selling the house, the proceeds of the sale of the house will be kept in trust until it is agreed how the proceeds will be distributed.
If a consensus cannot be reached regarding whether to sell, either spouse may apply to the Court for an Order which will direct the sale of the home. An Order for the sale of the home may be necessary when neither spouse can afford to keep the home or if neither wishes to continue living in the home. The Court may order that the parties list the home for sale and split the proceeds based on their interest in the property. If one party wishes to stay in the home, they must bid on the open market with other potential buyers.

There are lots of emotions tied to the matrimonial home. Many spouses see staying in the family home as a way of maintaining stability for the children. Some want to leave the home or their neighborhood in order to get a fresh start. It is essential to start planning for how this will occur early in your separation to ensure you are fully informed of your rights to the home.

At Millars Law we will fully explain your options of staying in or selling the matrimonial home. We will also create an individualized plan for you that best allows you to move forward toward the life you want to live.

Call Jennesa Plaine today at 519-657-1529 to schedule a FREE consultation.


By: Jennesa Plaine