Barrister & Solicitor

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FAMILY LAW:
Marriage or Cohabitation
Agreements
Marriage Breakdown or Breakdown of a Common Law Spousal or Same-Sex Partner Relationship
Conclusion/Disclaimer
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Wills
Probate Taxes
Intestacy
Rights of Surviving Spouse & Dependants
Conclusion/Disclaimer
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Family Law: Marriage Breakdown or

Breakdown of a Common Law Spousal or
Same-Sex Partner Relationship

6. Matrimonial Home

A matrimonial home is defined by the Family Law Act to be “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of the separation ordinarily occupied by the person and his or her spouse as their family residence”. Only married spouses may have a matrimonial home. The significance of having a matrimonial home is that both spouses have an equal right to possession, regardless of ownership. That is, one spouse may legally own the home, but, nevertheless, both spouses will be equally entitled to live in it. If a relationship breaks down, the spouse owning the matrimonial home is not entitled to require the other spouse to leave it. Likewise, one spouse cannot unilaterally change the locks to a matrimonial home. This entitlement to equal possession can be varied only by court order or agreement (not including a marriage contract).

A court order for exclusive possession of a matrimonial home will be granted in only limited circumstances. Typically, some evidence will be required of physical abuse or violence, or behaviour on the part of one of the spouses clearly adverse to the best interests of the children living in the matrimonial home. Significantly, emotional abuse on the part of one of the spouses against the other spouse is usually not sufficient on its own to warrant an order of exclusive possession.

The more subtle implications of having a matrimonial home are that the spouse legally owning the home is not entitled to sell it or to encumber it without the consent of his or her spouse. Usually, the consenting spouse will have to obtain independent legal advice in relation to the nature and implications of granting the requested consent.

It is possible to have more than one matrimonial home. For example, spouses may have a principal residence as well as vacation properties. So long as these homes fall within the definition of “matrimonial home”, all of the homes may be matrimonial homes. Because of the significant restrictions on the owning or leasing spouse of having a matrimonial home, it may be desirable for the spouses to jointly designate which properties are to be treated as a matrimonial home. There is a particular process to be followed in doing so, involving the registration of a document on title to the matrimonial home. Once a home is designated by this method as a matrimonial home, the other homes which would, otherwise, be matrimonial homes lose their character as such, and can be sold or encumbered without the consent of the other spouse.