Four important things to know about the matrimonial home

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BY: VALERIE DYE 

In family law, the matrimonial home is given special consideration in relation to other matrimonial assets. Firstly, a spouse is not given credit for the fact that he or she may have owned the home prior to marriage. Furthermore, assets received by one party as a gift or inheritance is exempted from equalization and is not calculated as part of the net family property. The matrimonial home is not exempted in this way and even where a matrimonial home has been received as a gift or inheritance, it becomes part of the net family property of the party who receives it and it will be divided in the event of separation or divorce. Given the special treatment accorded to the matrimonial home in family law, I outline below four other important facts regarding the matrimonial home.

  1. A couple may have more than one matrimonial home.

Section 18 (1) of the Family Law Act states 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. 

The courts have interpreted this section to mean that, since couples may occupy more than one property as their family residence then there can be more than one matrimonial home. In most cases, the second matrimonial home is a cottage. In MacFarland vs MacFarland  the husband inherited a cottage from his mother. The parties spent holidays there as a family but also spent time at the cottage separately. The husband would often visit the cottage on his own and the wife would sometimes visit with the children either with the husband or without him.  As the marriage deteriorated the husband spent more and more time at the cottage on his own. The Superior Court of Ontario found that the cottage qualified as a matrimonial home.

In making its determination the Court stated that section 18 (1) of the Act does not require that spouses should occupy the property together or simultaneously. The only thing that is required is that the property is treated as a ‘family residence’.

Clearly, not all cottages will be treated as a matrimonial home. The determining factor will be the manner and frequency of the use of the property. Section 18(1) also allows a couple to have matrimonial homes in more than one jurisdiction.

  1. Couples having more than one home can designate one home the matrimonial home.

One or both spouses may designate a home that is owned by either of them as the matrimonial home. Once this designation is made it may be filed in the Land Registry office. The effect of designating one home as the matrimonial home is that even if the couple resides in another home that has not been designated as the matrimonial home, the home in which they reside will not be deemed a matrimonial home. For this to be effective the designation must be made by both spouses. If the designation is made by only one spouse, then any other property which is occupied by the couple as their residence will remain a matrimonial home.

A designation is not final, and parties may subsequently decide to cancel it. Upon cancellation of a designation all other properties that qualify as a family residence will revert to becoming matrimonial homes.

To be continued…..

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