Selling the Common Law Matrimonial Home in Melancthon
Common Law Matrimonial Home After Separation
After you and your spouse have separated, what happens to the matrimonial home? What is a matrimonial home? A matrimonial home is any property (or real estate) in which you and your spouse lived together. This may be in one house or in two separate houses. It can include land or other structures on that land. Even if you do not own the property, it still counts as a matrimonial home if you lived there with your spouse. It does not matter how long you lived there – even if it was for a short time before separating. If you are buying a new property together where both of your names appear on the legal documents, it is still a matrimonial home. The other type of property that would be considered a matrimonial home is an investment property. This is any real estate, business or investment where you and your spouse own as joint tenants. It does not have to be the same as the place where you lived together. For example, if you became partners in a business before separating but did not live together, then this counts as an investment.
After you and your spouse separate:
– You remain co-owners of the matrimonial home (or any other real estate) unless you sell it and divide the proceeds equally. If there are debts against the property – such as a mortgage – then those will need to be paid.
– You do not have to live in the matrimonial home. Before moving out, it is your responsibility to find someone else who can pay rent. This person is called a “subtenant” and must sign another agreement in order to live in the property. Make sure they read and understand the Residential Tenancies Act and any other documents you both sign. If you cannot find a subtenant, then ask the landlord if you can cancel the lease. The landlord may be able to help by finding a new tenant or selling the property. If this does not work, then you will need to go to court for an order that says you can stop paying rent.
– You must continue to pay property taxes while you are still living in the house. You may be able to pay these costs directly to the City of Toronto.
– If you have any children, then both parents should try to agree on how much child support will be paid and how the matrimonial home will be used.
The court can make an order about what happens if:
– It is not possible for you and your spouse to decide what should happen between yourselves. For example, if your spouse refuses to leave or does not follow a custody agreement.
– It is difficult for one spouse (the owner) to buy out the other’s share in the matrimonial home because of a change in financial circumstances.
– You and your spouse cannot agree on whether to sell the matrimonial home, and you want it sold as soon as possible.
It is important for all divorcing couples to remember that:
– The matrimonial home is not something that can be divided up between each person. Only if you both decide to sell the house and divide the money equally will this become an issue.
– It is very hard to change an Order or Agreement once it has been made by the court. If one of you does not follow the Order, then new legal action can be taken which could cost more money.
– There are strict rules about changing a designation of property. This means changing how it is owned (for example, if you both own it as joint tenants and want to change that, or if only one of you is named on the deed). It must be done through a lawyer experienced in real estate matters.
– If your spouse was given money (“maintenance”) after separation and they paid off a mortgage or loan, then they may be able to claim part of that back from you. This can happen even if there was no court Order about this at the time.
Once you have been separated for over 90 days, it means that:
– You do not have to stay together as a family just to keep living in the same house. – In order to negotiate an agreement about who should stay and who should go, you can use family mediation services.
– If your spouse does not agree to the matrimonial home being sold or maintained as a joint tenancy, then it may be necessary for one of you to apply to court. If there is no agreement about who will pay for things such as the legal fees needed to do this, then both parties will need to share those costs.
The common law matrimonial home is a piece of property which the spouses own jointly. If you and your spouse separate, it’s important to know what happens to this shared asset in terms of ownership and responsibility for mortgage payments after separation.