Some Things To Consider About The Matrimonial Home
By:
Barrie M. Hayes, Litigation & Dispute Resolution, Family Law
In the majority of marriage breakdown situations, the most substantial asset requiring equalization is the matrimonial home. The Family Law Act, which governs the equalization of family property on separation defines the matrimonial home as “every property in which a person has an interest 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”. Where legal title to the matrimonial home is registered in both names of the spouses, the spouses each have a further and other right to require their respective legal interests in the home to be resolved through application under The Partition Act.
A spouse can, however, acquire an interest as a spouse under The Family Law Act even though he or she has no registered interest in the property in question. In a circumstance where a spouse is not registered on title, in order that the property be classified as the matrimonial home, the property must form the residence of the spouses which they occupied at the date of separation.
The Family Law Act provides that property owned by the spouses prior to marriage is not to be considered as family property. The Family Law Act, however, specifically exempts property forming the matrimonial home from this rule of pre-marriage property.
Consider this following fact scenario. Nancy, a widow, owns a home at the time of her marriage to Danny. The couple live in Nancy’s home and separate after five years of marriage. Despite the fact that Nancy brought the house into the marriage, in these circumstances, Danny would have a claim to one-half of the equity in the home (presuming all other property acquired by the couple during marriage had been divided equally) at the date of separation.
Nancy could have protected the house as an asset by requiring Danny to enter into a Marriage Agreement wherein he waived any claim against (but not his right of occupation) the matrimonial home. Nancy could also have protected her interest in this residence by not occupying the house after marriage as the matrimonial home. In so doing, Danny would not acquire an interest in the home’s value at marriage, but could claim an interest in any increase in the value of the home from the date of marriage to the date of separation.
The Family Law Act also provides that certain assets acquired by a spouse during marriage do not form family property that the other spouse can claim an interest in. These assets include gifts from third parties, inheritances, proceeds from life insurance policies and monetary awards for personal injuries actions. If, however, the spouse receiving any of these excluded monies utilises them for purposes relating to the matrimonial home (i.e. paying down an existing mortgage, renovation or improvement on the matrimonial home), the excluded nature of the assets is lost because of the special protection provided in The Family Law Act to the matrimonial home.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
