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If I Get a Divorce, Who Gets the House?

A man looking at a house, wondering about who will get it after his divorce

The home is often the largest asset that needs to be divided up after the breakdown of a relationship. Because of this, there is quite a bit of interest over who retains ownership of the property.

What is the Matrimonial Home?

The matrimonial home is the house, apartment or other living space where married partners lived together at the time they separate.

Regardless of whether or not the home was owned prior to the marriage, both partners have a right to half the value of the matrimonial home. Both partners also have an equal right to stay in the home up until the divorce is finalized. It is not legal to refuse the other partner entry unless that condition has been arranged through a separation agreement or a court order.

Equal rights to stay in the home remain until:

  • a separation agreement or court order determines that one of the partners involved can no longer live there
  • the home is sold or the lease on it ends
  • the divorce is finalized and one of the partners does not have their name on the title of the home

Even if one of the partners owned the home prior to the marriage, they are not able to sell or take a mortgage out on the home without permission until the divorce the finalized.

Exclusive Possession

If there is a case where it is impossible for the partners to continue to coinhabit the matrimonial home during divorce proceedings, perhaps due to a physically or emotionally abusive relationship, it is possible for one partner to file for exclusive possession of the house.

Due to the severity of these situations, the courts will carefully consider:

  • the best interests of any children that may be affected
  • the financial position of both spouses
  • past written agreements
  • the availability of alternate accommodations
  • the possibility of violence or other damaging behaviour

Decisions made by the court on matters of exclusive possession are punishable by fine or imprisonment.

There may be more than one matrimonial home

Some people accumulate more matrimonial property so to speak than others. A cottage is the most common second matrimonial home. Vacation homes are commonly overlooked as matrimonial homes where one party feels more of a connection to that property than the other. The important element to look at is whether the property was enjoyed by both parties and used as a family residence.

Who gets the home?

Where the deed is in both names the consent of both parties is typically required to transfer the property to one individual’s name. Having said that, there are extreme circumstances where a Court will make what is known as a vesting order to put title in one party’s name.

If title is in one party’s name, typically the non-titled party will get a judgment and then enforce the judgment as a lien (or writ) on title. If the judgment is not satisfied that party can move to have the property sold through the Sheriff’s office.

Who gets the house in a Common-Law Relationship?

In the case of a home shared by common-law partners, the home remains the property of the one who has their name on the deed. The other partner will not necessarily have any claim to the house unless that condition has been decided through cohabitation agreement or during the crafting of the separation agreement.

In extreme cases of abusive relationships, the partner who does not have their name on the deed may be able to stay in the home and acquire a restraining order against the ex to bar them from entry to the home.

A common-law partner needs to show that they contributed to the property directly in order to have a claim to the equity, or otherwise made a contribution to the property’s maintenance or an improvement to the property in order to claim what is known as an equitable, or trust interest in the property.