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When dividing assets at the end of a marriage, both spouses have equal rights of possession to the matrimonial home, and cannot sell or mortgage the home without the other spouse’s consent. Often, spouses as part of the separation process will come to an agreement with respect to who should remain in the home, or agree to dispose of the property and distribute the net proceeds. This will typically form part of a separation agreement, formally documenting the terms upon which the spouses have agreed to with regard to the home. |
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Exclusive possession of the matrimonial home.
If spouses have difficulty coming to an agreement with respect to who should remain in the home, one spouse may seek an Order for exclusive possession against the other spouse. The Kitchener family law lawyers at Sherman Law LLP understand the importance of determining how to handle the matrimonial home. |
The matrimonial home and equalization of net family property.
In Ontario, the matrimonial home is a divisible asset between the spouses when calculating the net family property in order to determine the equalization payment. If the home is owned as joint tenants, then the home is divided evenly when calculating net family property. If one spouse owned the home prior to marriage, but the home was ordinarily occupied as a matrimonial home throughout the relationship, the party who is the sole registered owner of the home would list the full value of the home in his or her net family property. The other non-titled spouses would be entitled to a half-interest in the home. In some circumstances, it is possible for spouses to include terms in a marriage contract that will allow the value of the matrimonial home to be excluded from a net family property calculation, which will protect the spouse who brought the home into the marriage from having to divide its value in the event of separation.
Both spouses must consent to the sale or re-financing of the matrimonial home. In some circumstances, a joint tenancy can be severed if you are in poor health or are elderly and you want to ensure that you have protected your inheritance whereby the knowledge and consent of the other spouse is not required. If there are fears about a fraudulent conveyance or encumbrance, our lawyers can arrange to have a designation of matrimonial home registered on title. This is not done on every case, as there is an expense to remove the registration when your case is settled. If the matrimonial home is to be sold, both spouses can agree to retain a real estate lawyer to close the deal. The real estate lawyer will require a copy of the separation agreement or order with a direction on how to pay out the net proceeds of sale upon closing. If the matrimonial home is being transferred and refinanced by a spouse to pay an equalization, the lender will require a copy of the signed separation agreement or order to arrange financing and provide funds for closing. |
For over 40 years, clients have trusted in our ability to explain more than simply their legal rights and obligations in a separation or a divorce. We focus on sustainable collaboration that leads to creative solutions and consensual dispute resolution. To benefit from our knowledge and experience, please give us a call at 519-884-0034 or send us an email. We assist clients in Kitchener, Waterloo, Cambridge, Guelph, Stratford, Hamilton, London and surrounding areas.
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