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What You Should Understand About the Marital Home When You’re Getting Divorced


If you are in the process of preparing for a divorce, one of the biggest decisions you are facing right now is what to do with the marital home. Contemplating the fate of the marital home, which is the place where you and your spouse ordinarily reside at the time of you cease to continue your marriage, can be emotionally trying. After all, in happier times this may be the place where you and your spouse began your lives as newlyweds, decided to expand your family, and where your children have lived most of their lives. While potentially stressful to think about, this is an important question as in many divorces, the family home is the couple’s largest asset. Because the marital home holds so much value, the decision of what you’re going to do with the house is often essential in divvying up other property that is in dispute. It can help put things in perspective for both parties from both a financial and emotional standpoint.

What Should Be Understood?

  • Generally speaking, the law in Ontario regards marriage as an equal partnership where each spouse is entitled to equal portions of shared property at divorce.
  • Original ownership of the marital home becomes irrelevant after marriage.
  • As a married couple, both of you have an equal right to stay in your home unless a judge decides that one of you must move out.
  • Neither of you can sublet it, rent it, sell it or mortgage it without the other’s permission – and that still applies even if the home you own or rent is only in your name.
  • While the decision to sell the marital home has to be made jointly, if your spouse does not cooperate, you may have to initiate an application with the court for the sale of the matrimonial home.
  • Gifts or inheritances received during the marriage from someone other than a spouse in the form of a home may be excluded – provided that the gifts or inheritances were not used towards or as a matrimonial home.

What if There’s a Prenuptial Agreement in Place?

It is an ideal situation if you and your ex can reach your own divorce agreement dividing up marital assets, including the family home. However, for many divorcing couples, this process isn’t such a simple one and it takes the help of experienced lawyers to ensure that both parties end up with a property disposition that they can agree to.

For this reason, it is always best to have arranged what would happen in the event of a divorce prior to the marriage by having a prenuptial agreement in place. If you have signed a prenuptial agreement, also known as a marriage contract, then this agreement stipulates what you and your spouse will do with your property if you separate or divorce and overrides the default to equalization dictated by the law.

Don’t Begin This Next Journey Alone.

Deciding what happens to the matrimonial home can be complex. However, this likely isn’t the only thing of value that is in question and speaking with someone who is experienced in family law as soon as possible is the best way to ensure that your property and assets are protected. As the Mississauga divorce lawyers at Zagazeta Garcia LLP, we have significant experience helping people figure out their best course of action following the breakdown of a marriage. Contact us today to schedule an appointment so that we can confidentially begin to figure out your next steps together.




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