The matrimonial home is the property (or properties) that a married couple uses as their family residence. It is possible for there to be multiple matrimonial homes, for example, if the couple owns a cottage, or vacation home, in addition to their main residence.
There is typically a significant focus put on the value of the matrimonial home during a divorce or separation because it represents a substantial portion of a couple’s joint asset base. It is important for both parties to get their rightful share of the value of the property.
Procedure when Matrimonial Home is Jointly Owned
Any property that was acquired during a marriage jointly must be divided evenly between the two parties.
In these cases, there are two common scenarios:
- one party buys out the other party’s interest in the home
- the home is sold and both parties share the proceeds (subject to any equalization payment, discussed below)
In the first scenario, an independent real estate agent or evaluator will conduct an appraisal to determine the value of the home. In some cases, both parties may seek to get an appraisal and there can be conflicts that need to be resolved through negotiation or litigation.
The party that is choosing to purchase the home will need to judge independently if they have means to keep up with ongoing payments and billing on their own. Ultimately, a jointly owned home can only be bought out by one party on an agreement of both of the parties. It cannot be a unilateral decision.
Procedure when Matrimonial Home is in One Party’s Name
Even in cases where only one party has their name on the title of the matrimonial home, both parties have an equal right to possession of the home until the divorce is finalized.
In these situations, the party whose name is not on the title will still receive an “equalization payment” on the matrimonial home, through the Family Law Act. This must be claimed within two years of the divorce, or six years from the date of separation, whichever is sooner.
An equalization payment refers to the overall calculation of assets between the parties (and determined based on ownership) which calculates the payment from one party to the other to equalize their asset base. For example, if Wife has $100,000 in assets and Husband has $50,000 in assets then an equalization payment would amount to $25,000 from Wife to Husband. In this case, both parties leave the relationship with $75,000 in assets.
The Exceptions
If there was a matrimonial home that was purchased before marriage and it is not the matrimonial home on the date of separation then one party may be entitled to what is referred to as a Date of Marriage Deduction for the value of the home that existed on the date of marriage.
The Matrimonial Home may also be impacted by the terms of a Marriage Contract or Cohabitation Agreement.
Understand your situation
The law around property division in a divorce can be complicated. For this reason, it is always a good idea to talk to a family law lawyer to get valuable advice about what you can expect in your particular situation.
Book a free consultation to get a better idea of your legal representative, the team behind them, and the experience and expertise that they have in dealing with similar cases.