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Do I Get To Keep My House In A Divorce?

Posted on October 1, 2019

Divorce and separation are never easy. There are so many things to consider and it can sometimes feel overwhelming. A common question we hear from our clients who are going through a divorce or separation is ‘do I get to keep the house?’. There are a few things to consider, read on.

Are you married or common-law?

Were you married to your spouse or in a common-law relationship? Under the law, only married couples are considered to have a marital home – the house, townhome, apartment or unit that was shared by married partners as their family home at the time of separation. The marital property includes cottages and other property where the couple lived. In some cases, parties may have more than one matrimonial home.

Spouses Have Equal Rights

When married couples separate they have an equal right to stay in a matrimonial home. They also both have a right to claim a share in the value of a marital home(s), as part of the division of property and assets.

These rights stand, even if only one spouse carries the legal title of a matrimonial home, or owned the property before the marriage. There is also an equal right to reside in the home regardless of who owns or owned the property.

This is sometimes referred to as the ‘right to possession’. Even if your spouse is the only owner of the matrimonial home, they cannot change the locks or refuse to let you into the house without an agreement or court order.

What if we rent our home?

These same equal rights apply if you rent a matrimonial home. It doesn’t matter if your spouse solely signed the tenancy agreement or lease; both parties still have equal rights of possession.

Who moves out?

You and your partner must decide who stays in the marital home after you divorce or separate. If you or your spouse move out of the house, that person doesn’t give up their right to claim ownership of the property or claim their share in its value.

Some of the things to consider in the decision of who moves out of the home are:

  • Do you or your spouse have another place to live?
  • Does one spouse need to be in the house for work or health reasons?
  • Do you have children and how will they be impacted when one spouse moves out?
  • Should the primary parent – the spouse who most looks after the children – stay in the house?

If one spouse agrees to move out of the home, there may need to be specific conditions put in place to make this work effectively, for example, will they gain access to collect their personal belongings and if children are involved, will the spouse be able to come to the house for visits? How will the expenses of the home be paid?

Under the law, the living situation between you and your spouse changes when one of the following takes place:

  • A separation agreement or domestic contract agreed to by both partners, states that one of you cannot live there.
  • A court order states that one of you cannot live there.
  • The matrimonial home/s are sold, or if renting, the lease ends.
  • A divorce is finalized, and you aren’t on the title or lease of the home, then you are no longer considered a spouse with equal rights to possession.

What You Need To Consider

It’s imperative to have a separation agreement or court order in place before you divorce that includes plans about the marital home. Once you are legally divorced, you lose equal rights to property not in your name and things can get even more complicated.

Seeking Professional Advice

If you and your spouse cannot agree on who gets to keep the house and how to divide property, it could be time to get help from an experienced family lawyer. It’s worth discussing with a professional, because you may be giving up rights or exposing yourself to liability by moving out of your home, or agreeing to who lives in the house.

Contact the lawyers at Epstein Law today at 1-866-463-2266. 


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