What Happens To The Matrimonial Home Upon Divorce

Divorce Laws of Canada provide for the rules respecting the division of property upon the dissolution of a marriage. Of all the property which a married couple have, it is the Matrimonial Home which is treated in a most unique manner by the laws of Canada. A Matrimonial Home is the home in which the couple resided at the time of their separation. The Matrimonial Home may be a home which one of the parties owned prior to marriage, and into which the other spouse moved in after the couple got married. It may also be a home which the parties purchased together after the date of their marriage. A couple may actually have more than one Matrimonial Home. For instance, if the couple also have a summer home, and they have lived in that home during parts of their summer vacations, this home would then be considered a second Matrimonial Home. The Laws with respect to the division of the Matrimonial Home would apply to this second Matrimonial Home as well.

As in the case of other property, if a couple has only lived together as common-law spouses, but were never married, the Divorce Laws respecting the division of property, including the Matrimonial Home do not apply, and in order for the spouse whose name does not appear on title to make a claim for a share of the value of the Matrimonial Home, recourse must be had to the legal concept generally known as Trust.

In the case of married couples, however, regardless of which spouse's name appears on the title as the owner, both of the spouses have an equal right to the possession of the Matrimonial Home. Nevertheless, the issue of whose name appears on the title still remains important. Where the Matrimonial Home is in the name of only one of the parties, only that party is entitled to the possession of the Matrimonial Home once they cease to be spouses, unless they agree or a Court orders, otherwise. However, when the property of the marriage is being calculated and divided, the non-owner spouse would likely still receive one half of the value which the Matrimonial Home had on the date that the parties separated.

Although both parties, regardless of whose name appears on title have an equal right to the possession of the Matrimonial Home while they are still married, either party can make a Motion to the appropriate Court for an order that this party be granted what is known as Exclusive Possession of the Matrimonial Home. In granting or rejecting such a Motion, the Court will have regard to several factors, including the conduct of the parties such as family violence and what the best interests of the children might be.

In the case of couples who have lived together as common-law spouses, but were never married, the above laws do not. However, these couples can assert interests in property based on equitable doctrines known as Resulting and Constructive Trusts. A Resulting Trust can be asserted where on common-law spouse provided the funds to purchase the property, and it was decided by the couple to put the title in the name of the other common-law spouse. If the intention of such an arrangement was to be that the property was being held in trust for the non-owner common-law spouse, then the concept of the Resulting Trust may allow the non-owner spouse to share in that property. However, where the property is determined to have been a gift to the spouse, then the Resulting Trust argument fails, and the common-law spouse in whose name the property appears, will end up owning it without having to share it with the other spouse.

In situations where it cannot be determined as to what the common-law partners intended when acquiring the property, the equitable doctrine of Constructive Trust can be asserted. The Courts have held that the principles of equity ought to recognize the joint efforts of common-law spouses in having contributed to their success, such as where one spouse stayed at home and took care of the children and housekeeping, which allowed the other common-law spouse to go to work, make money, and pursue a career. In such situations the Courts have decided that the spouse who stayed at home is entitled to share in the property of the other spouse, based additionally on the doctrine of unjust enrichment.
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