The house is under my spouse's name – What do I do?
Separation introduces numerous uncertainties, particularly concerning your living arrangements. A common question arises: What happens to the family home if it’s solely in your spouse’s name? In Ontario, the law acknowledges the special significance of the family residence—termed the “matrimonial home”—and offers specific protections to spouses, irrespective of ownership.
Here’s an overview of your rights regarding the matrimonial home, the distinction between equal and exclusive possession, and how these factors influence the division of property.
Understanding the Matrimonial Home
Under Ontario’s Family Law Act, a “matrimonial home” is any property that was ordinarily used by the family as a residence at the time of separation. This can include:
The primary family residence (e.g., a house or condo)
A family cottage or vacation property
Key aspects of the matrimonial home:
There can be multiple matrimonial homes if the family regularly used more than one property as a residence.
Ownership is irrelevant; both spouses have equal possession rights during the marriage (unless exclusive possession is ordered).
Special rules govern the division of matrimonial homes upon separation.
Impact on Net Family Property
In Ontario, the value of the matrimonial home is included in the calculation of net family property (NFP) for both spouses. Unlike other assets, the owner spouse cannot deduct the home’s pre-marriage value from their NFP. This ensures an equitable division of assets upon separation despite one spouse not being on title to the matrimonial home. However, this can be a complicated topic, so be sure to check out our other articles for a deeper understanding of how the matrimonial home affects property division.
For married spouses not on title, the value of the matrimonial home at the date of separation is included in the equalization process. However, if there is a significant post-separation increase in the home’s value, a separate claim (such as unjust enrichment or constructive trust) must be made to share in that appreciation (more information below). Consulting a family lawyer is essential to understand these nuances and take the appropriate steps to protect your rights.
Consent Required
This protection ensures that one spouse cannot unilaterally take actions that jeopardize the other spouse’s interest in the matrimonial home. The requirement for spousal consent in transactions involving the matrimonial home, regardless of ownership, is explicitly stated in Section 21 of the Family Law Act. Here’s the relevant text from the legislation:
Section 21(1): Alienation of matrimonial home
A spouse shall not, without the consent of the other spouse, dispose of or encumber an interest in a matrimonial home, unless the other spouse has released all rights under this Part by a separation agreement, or a court order has authorized the transaction.
The purpose of this rule is to ensure that both spouses’ interests in the matrimonial home are safeguarded during the marriage or separation. It recognizes that the matrimonial home often represents both financial and emotional stability for the family, and unilateral actions by one spouse could unfairly prejudice the other.
What If We’re Common-Law Partners?
For common-law partners, the matrimonial home provisions of the Family Law Act do not apply. The property belongs to the individual whose name is on the title. However, the non-titled partner may still make a claim to the property based on equitable principles, such as unjust enrichment, joint family ventures, or constructive trusts.
Unjust Enrichment: If you contributed significantly to the property (e.g., through renovations, mortgage payments, or upkeep) without being compensated, you may be able to claim a share of its value.
Joint Family Venture: If the relationship involved substantial contributions to a shared financial and domestic partnership, a court may recognize the property as part of a joint family venture. This could result in the non-owner partner receiving a share of the property proportionate to their contributions.
Additionally, a constructive trust may be imposed by the court to address unjust enrichment. This remedy applies where the non-titled partner made direct or indirect contributions—financial or otherwise—that enriched the titled partner and resulted in a deprivation to themselves. Courts have recognized various contributions, such as significant unpaid labor (e.g., renovations or caregiving) or financial input (e.g., paying for household expenses), as valid grounds for awarding a proportional share of the property.
For example, in Kerr v. Baranow, the Supreme Court of Canada emphasized the importance of evaluating financial and non-financial contributions in the context of a joint family venture, while Peter v. Beblow highlighted that a constructive trust can reflect the value of unpaid work such as homemaking or childcare. Claims under these principles require detailed evidence, including records of financial payments, labor contributions, and the overall enrichment received by the titleholder.
These types of claims are complex and fact-specific. Consulting an experienced family lawyer is essential to understanding your rights and building a strong case to protect your interests.
Protecting Your Rights
If the house is solely in your spouse’s name:
Understand Your Rights: Determine if you qualify for protections under the matrimonial home provisions or need to explore other claims. Consult a family lawyer to understand your rights and options.
Stay in the Home if Possible: As a married spouse, you have an equal right to possess the home unless a court orders otherwise.
Document Contributions: Keep records of any financial or non-financial contributions you’ve made to the property.
Negotiate or Mediate: If possible, work with your spouse to reach an agreement about the home’s future.
Conclusion
The matrimonial home holds significant emotional and financial value. Ontario law provides specific protections to ensure fairness, regardless of whose name is on the title. Understanding your rights and seeking appropriate legal advice can help you navigate this complex aspect of separation, ensuring your living situation and financial interests are safeguarded.
