What is a Matrimonial Home?

By Valerie L. Brown of Brown Law Firm Professional Corporation

In a previous article, we discussed the impact an inherited Cottage could have for separating spouses, depending on whether it is a matrimonial home, or not.  So, when will a property be considered a matrimonial home?

There is no presumption that just because a spouse owns a property that it is a matrimonial home. Section 18 (1) of The Family Law Act provides that, “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”.

Firstly, it is possible to have more than one, or even two, matrimonial homes. The Family Law Act does not define a matrimonial home as “a property”, but rather applies to “every property”.

A person’s interest in property may come about in one of several different ways. Their interest may arise through direct ownership which is the most common. It may also arise through beneficial ownership, ownership of shares in a corporation that owns the property, a life interest, a leasehold interest or a revisionary interest. Determining the nature of a person’s interest in property can be complex, especially when equitable claims are made. The first task is to determine who owns, or has an interest in, property. Except for equitable claims, interest in property is usually not disputed.

The kinds of property that may be considered a matrimonial home are actually quite broad and can include: a house, a cottage, a chalet, a condominium, a mobile home, trailer, and even a boat. The matrimonial home will not include a rented premises.

The Family Law Act requires spouses to have “ordinarily occupied” the property. More specifically, the question is whether the spouses occupied the property regularly at the time they separated. This does not require them to be physically present at the property at the exact moment of separation, which would limit the matrimonial home to only one property. This would also rule out seasonal cottages as matrimonial homes if the separation took place in the winter, which is not the intention of the Family Law Act. Instead, what is considered is whether the cottage was used regularly by the spouses, and not necessarily together at the same time, or in equal amounts of time.

Perhaps the most important consideration in determining whether a property is a matrimonial home is whether it was occupied as a “family residence”. Mere attendance and use of the property is not sufficient. Indeed it would be unusual if married spouses did not attend a cottage owned by one of them during the marriage. The case law regarding matrimonial homes considers the family residence as an alternate residence for the family, and that it be treated in the same manner as the primary residence of the family. This is indicated by whether:

  • The expenses related to the cottage came from joint funds, or joint debt;
  • both parties provided housekeeping and maintenance;
  • both parties were involved in planning and upkeep;
  • both parties contributed to the labor required for renovations or other maintenance, although not necessarily in equal proportions;
  • the spouses entertained family and friends at the property regularly; and
  • the parties treated it as one would objectively expect of the family home.

While the financial consequences flowing from whether a property is a matrimonial home, or not, are clear, there are other rights that are associated with a matrimonial home that may be important to a spouse. These rights include the right to occupy a matrimonial home, and not have the matrimonial home sold or encumbered without their permission, regardless of ownership. However, unless a non-owner spouse wants to stay in the property, the bigger issue is usually financial.

Spouses who wish to receive full credit for any property brought into the marriage that may be considered a matrimonial home, or who inherit money or property during the marriage that may go into a matrimonial home, should consult with a lawyer to explore their options. Most often, this can be accomplished through the negotiation of a Marriage Contract, which may be entered into prior to the marriage, or during the marriage at the time of the inheritance.

Although spouses may have ordinarily occupied a property as their family residence during the marriage, it may not be a matrimonial home if at the date of separation the use of the property changed such that one of the spouses no longer went to the cottage regularly, or the spouses each went to the cottage separately. That is, a matrimonial home can lose its identity as such.

While the financial consequences flowing from whether a property is a matrimonial home, or not, are clear, there are other rights that are associated with a matrimonial home that may be important to a spouse. These rights include the right to occupy a matrimonial home, and not have the matrimonial home sold or encumbered without their permission, regardless of ownership. However, unless a non-owner spouse wants to stay in the property, the bigger issue is usually financial.

Spouses who wish to receive full credit for any property brought into the marriage that may be considered a matrimonial home, or who inherit money or property during the marriage that may go into a matrimonial home, should consult with a lawyer to explore their options. Most often, this can be accomplished through the negotiation of a Marriage Contract, which may be entered into prior to the marriage, or during the marriage at the time of the inheritance.

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