Four important things to know about the matrimonial home (part 2)

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BY: VALERIE DYE 

In the previous article, I presented two important things that everyone should know about the matrimonial home. This article will highlight two further things that should be known.

3. Both spouses are entitled to possession of the matrimonial home

Section 19 of the Family Law Act (“The Act”) provides that both spouses are entitled to possession of the matrimonial home. There is a distinction in the nature of such possession which is dependent upon whether both spouses are on the title or whether only one spouse is on the title of the home. Section 19 (2) states that where only one person is on the title then the other spouse’s right to possession: 

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses unless a separation agreement or court order provides otherwise.

In relation to subsection (a) the right to possession of the matrimonial home can only be exercised against the other spouse. This means that if the spouse ceases to own the matrimonial home or if the matrimonial home is owned by a third party the other spouse cannot claim a right to possession of the home. Further, as stated in cases such as Murray vs Burtolon a non-titled spouse’s right to possession does not mean that that spouse has an interest or legal ownership of the property. The right is only a right to possession.

In accordance with subsection (b) of section 19 (2) of the Act, if only one spouse owns the matrimonial home, the other spouse’s right to possession ends when the marriage ends, unless the courts makes an order extending this right.

Even though both spouses have a right to possession the court may make an order for exclusive possession of the home. When such an order is made the court also has the power to order the payment of occupation rent by the occupying spouse to the other spouse. It is more common for courts to order the payment of occupation rent when one spouse has been forced out of the home by the other spouse.  In Khan vs Khan, the wife was forced to leave the matrimonial home because of the tension and toxic atmosphere. As soon as the wife left the home husband changed the locks and moved his girlfriend into the home. The Court held that he had given himself exclusive possession of the home without a court order and that the wife was entitled to be paid occupation rent.

The payment of occupation rent is not automatic, and the court may look at certain circumstances such as the conduct of the non-occupying spouse and whether the occupying spouse carried the expenses of the home on his or her own.

4. No spouse can dispose of the matrimonial home or encumber the matrimonial home

Whether the matrimonial home is owned by both spouses or only one spouse it cannot be sold or mortgaged or alienated in any way without the consent of the other spouse.  As such, in order to sell the matrimonial home or obtain a mortgage, both spouses must be a party to the transaction and if only one spouse owns the property the other spouse must provide written consent. This requirement may be superseded by a court order or by a separation agreement signed by the parties.

Where the home is disposed of or encumbered without the consent of the other spouse section 23 (2) of the Family Law Act states that the transaction can be set aside unless the person to whom the property was disposed, acquired it for value, in good faith, and without notice, that the property was a matrimonial home.

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