Exclusive Possession of Matrimonial Property

division of property

One key area of contention in a divorce is the division of property. One of the main reasons why it is a contentious area is because of the sweat, blood and tears that goes into building up assets during a marriage. In some instances, spouses spend decades of their lives building businesses and accumulating assets in order to leave a strong legacy for their families. The same is true for spouses who may not have much financially; the only difference is that the focus is often the matrimonial home. The matrimonial home is an area of contention mainly because of the vast number of memories associated with it. This article will discuss the circumstances under which a spouse gets exclusive possession of the matrimonial home.

Firstly, it is important to note that the house that has been shared by a married couple is what is considered to be the matrimonial home. There is no party that is allowed to order the other out of the matrimonial home. In addition, neither party can change locks or force the other to leave unless there’s a court order in place or the parties come to an agreement.

It is important to note that when it comes to divorce procedures the matrimonial home is treated differently as compared with other properties. There are two elements by which a matrimonial home is treated differently, these are:

  1. If the matrimonial home is owned by one spouse on the date of the marriage, there is no credit awarded to the spouse when there’s a separation.
  2. It does not matter whose name is on the papers for the matrimonial home, therefore, both spouses have the legal right to live in the matrimonial home.

It must be noted that if a couple has been married for less than 5 years, it is possible to ask for an unequal division of net family properties in order not to create an unfair result.

Exclusive possession basically can be defined as the right of one spouse to possession of the home. As noted by statements above both spouses have equal rights to come in and out of the house as they please. And this is regardless of who owns the house. However, there exist exceptional circumstances whereby a judge is able to take away the right from one of the spouses involved. This can only happen as a result of serious issues such as domestic violence or attempted murder. Therefore, it is only under such serious circumstances that one spouse has exclusive possession of the matrimonial home.

Note that when a court considers giving exclusive possession to one spouse there are a number of factors that the court must take into consideration, such as circumstances of domestic violence. Other aspects that the court looks at include, whether:

  • Each party has family or friends to stay with
  • Children are in the picture, and if they are, what is in their best interests

If you need legal advice or representation in your divorce contact our divorce lawyers Toronto.