During the divorce process, many assets will be split evenly among each party – as long as they were acquired during the marriage.
However, where does that leave a cottage property if owned by both parties?
In this article, we discuss how secondary homes are split during divorce and how you can continue to maintain the occupancy of your cottage.
Ownership Of Your Current Home During Divorce
The Ontario Family Law Act defines a matrimonial as:
“Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home”.
The “matrimonial home” is typically the home that is ordinarily occupied by married spouses as their family residence at the time of separation.
Can There Be More Than One Matrimonial Home?
The courts have recognized that there could be multiple matrimonial homes. This often arises in the context of a summer cottage and other real property.
While there is no simple checklist, a court would have to make a factual determination regarding all real property in order to conclude whether or not it meets the definition of a matrimonial home.
How Do I Keep My Cottage In The Divorce?
A prenuptial agreement is typically the first recommendation every lawyer makes to their clients to protect a family cottage. This can also be accomplished during marriage with the parties entering a marriage contract. Typically, in these situations, the title remains in one party’s name.
In this agreement, it would state specifically that the family cottage you want to keep is to be excluded from the value of assets if there was a divorce.
However, all rights regarding possession and protection from the property being sold will continue to be available to the other spouse because of special protections in the Family Law Act.
What If My Cottage is in Quebec? Or Another Country?
Some families own property in other provinces and even other countries.
In Ontario, the laws of a couples’ “last common habitual residence” govern matrimonial affairs.
However, property located outside of Ontario cannot be considered a matrimonial home and does not have the protections described above.
In these cases, the property will simply be divided from a monetary perspective, and the property will not be afforded any special treatment as a matrimonial home.
Need help drafting a prenup or marriage contract, or have questions about your cottage?
At Epstein & Associates, we’re Ontario’s Family Law Firm and your Barrie family lawyers located in the heart of downtown Barrie.
Feel free to call our office today to book a free 30-minute consultation.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.