Family

Matrimonial home often hotly contested in divorce

By AdvocateDaily.com Staff

The unique status of the matrimonial home makes it one of the most hotly disputed elements of a divorce, says Toronto family lawyer Glen Schwartz.

Schwartz, partner with Nathens, Siegel Barristers LLP, says the application of the designation to a particular property can prove crucial, since according to the Family Law Act, spouses are unable to deduct the value of the matrimonial home at marriage from their net worth for the purposes of equalization, even if one of them brought it into the marriage.

“There are many special rules associated with the matrimonial home, but from a financial point of view, it can make a huge difference,” he tells AdvocateDaily.com.

For this reason, Schwartz says marriage contracts will often address the issue, in order for the spouse who owned the property at the time of the marriage to protect their equity in case of a future split by creating a provision in the marriage contract to allow for a date of marriage deduction on his/her net family property.

In addition, no matrimonial home — even those in the name of one spouse only — can be sold or further encumbered without the consent of the other spouse, says Schwartz, who adds that neither party can kick the other out of the matrimonial home, but either may ask a court to grant them exclusive possession of a matrimonial home following separation.

He says many of his clients are surprised to find out that Ontario’s Family Law Act (FLA) allows for more than one property to be classified as a matrimonial home.

Under s. 18 of the law, “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.”

“Obviously for tax purposes, you can’t have more than one primary residence, but you can technically have more than one matrimonial home,” Schwartz says.

“And you will often find couples with cottages spent almost as many days up there as they did in the city, up until the date of separation,” he adds, noting that recreational properties don’t have to be used primarily to meet the FLA’s matrimonial home definition.

In some of his recent cases, Schwartz says parties have quibbled over their precise date of separation to avoid having certain properties designated as matrimonial homes.

“Sometimes it’s because they don't the ‘special’ non-financial rights associated with a matrimonial home as outlined in the FLA to apply, such as not being able to remove the other party from the property, and other times it’s because they want the benefit of having the whole equity on one side of the ledger when it comes to equalization,” he says. “In terms of the definition of separation, people sometimes think you need to have signed an agreement, but in fact, all that has to happen is for one party to make clear to the other that the relationship is over without any chance of reconciliation.

“From then, the date is set in stone, and you have to look at which properties were matrimonial homes on that day,” Schwartz adds.

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