Upon separation, both you and your partner may want to stay in the matrimonial (family) home. If you and your partner are married, both of you have an equal right to stay in the matrimonial home until it is sold or until there is a court order or agreement, even if the legal title to the property is only in one of your names. A spouse cannot sell or mortgage a matrimonial home without the other spouse’s written permission.

A matrimonial home is defined as the home where the spouses ordinarily reside together at the time of separation. Parties can also have multiple matrimonial homes as this definition can apply to vacation properties, ski chalets, and cottages.

However, these rules for matrimonial homes do not apply to unmarried or “common-law” spouses, because the definition of matrimonial home applies only to married spouses. An unmarried spouse does not automatically have the right to stay in the family home if it is not in his or her name. If one unmarried spouse owns the home they can sell or mortgage it without the other spouse’s permission.

If you and your partner cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have a judge decide. An order or agreement for exclusive possession grants one spouse the use of the home and excludes the other. It should be noted that while the court can grant one party exclusive possession of the matrimonial home, the court cannot prefer one joint owner over another by forcing a sale of one party’s interest to the other. A sale of one spouse’s interest in a matrimonial home to the other spouse can only take place if both spouses have agreed to it.

If you and your partner have children, the partner who has custody of the children will most often be the one who gets to stay in the matrimonial home. This is because it helps children to adjust to a new family situation if they are in a place and neighbourhood that they are already familiar with.

The spouse who stays in the matrimonial home may have to pay occupation rent to the other spouse. Occupation rent is a measure to compensate the spouse who is forced to leave the matrimonial home despite having equity in it. However, there is an uncertainty of recovering occupation rent. There is no strict stance on how the courts handle claims for occupation rent; the court exercises their discretion and bases their decisions on the circumstances pertinent to each case. For instance, the court may offset the amount of occupation rent by the expenditures incurred in maintaining the matrimonial home.

On an interim basis, a court may also provide a nesting order. Such an order leaves the children in the matrimonial home while the parents alternate periods of possession of the home.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers.

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