What happens to your home after your marriage ends?
Living with your partner is a significant development in any relationship. Whether you move in together after a few months of dating or in the days after marriage, it is a sign to each other and the world of your commitment to one another. Perhaps you’re moving into a partner’s existing home, or they are coming to join you in yours. Perhaps the plan is never to legally marry but to live together in a domestic partnership.
While these nuances may not mean much in terms of your day-to-day relationship, the legal status of a relationship (whether married or common law) and how title is held to a home can significantly impact what happens if that relationship ends. While the legal status of your relationship does not impact your right to make claim for spousal or child support, it can make a significant difference when it comes to the treatment of your home.
The legal status of your relationship and how title is held to a home can impact who gets to decide what happens to the home. If both parties share title to the home, and one makes decisions without the knowledge or consent of the other, one could potentially be held civilly liable or criminally responsible for fraud.
So, what rights do you actually have to your home after your relationship ends?
Married Spouses vs. Common Law Partners
Many long-term domestic partners make the decision not to legally marry for a variety of reasons. The choice is entirely theirs, and most would argue that it does not impact their day-to-day relationship in any way. It does, however, significantly impact treatment of the property they resided in during their common law partnership.
When you are married, any property in which either spouse has an interest, and which is currently or was at the time of separation “ordinarily occupied by the person and his/her spouse as their family residence” is considered a matrimonial home for legal purposes. Multiple properties, such as a home and/or cottage can be considered matrimonial homes under the Family Law Act. It is of little consequence if one party purchased the matrimonial home prior to marriage or if only one spouse is on title to the home.
This is not the case when you are in a common law partnership. Although you have the same right as married spouses to make a claim for spousal and child support, you do not have the same rights to the home that you share with your partner. If you both share title to the home then your situation will depend on how title is held, either as joint tenants or tenants in common. If only one spouse is on title, the other partner does not have an automatic legal entitlement to possession of the home or to make decisions regarding the future of the property and will likely be required to find new living accommodations.
If you do separate, and wish to sell the home, what happens next?
Protecting Title to the Home
If you are legally married and continue to share the matrimonial home following separation, then you each have a right to possession of the home and entitlement to decide in the future of the home. If you are negotiating your separation, one party may decide to purchase the other’s interest in the home. But what happens if you cannot agree on the future of the home and whether it should be sold?
If you want to sell the house, remortgage the property, or make any other major changes that could impact how title to the home is held, you need your former spouse’s consent before taking any of those steps.
This may not be welcome news, especially if you and your former spouse are on bad terms. However, making decisions without their consent, such as registering a mortgage or selling the home unilaterally without the knowledge or consent of your former spouse may constitute fraud in some situations. It does not matter whether title to the matrimonial home is held jointly or solely by one party, married spouses have an entitlement to decide in the future treatment of the home.
Making those decisions can be stressful, especially when you are dealing with the turmoil of a marriage breakdown. The law is clear that your former spouse cannot force you to agree to or sign anything under duress. Courts have a low tolerance for those who try to force their former spouses into making significant decisions against their wishes.
Many financial institutions and/or legal counsel will require a non-title holding spouse to obtain independent legal advice prior to signing any document altering how title is held to a matrimonial home. This ensures that a non-title holding spouse remains fully informed about the impact of their decisions, and any legal consequences that may flow from those decisions.
Final Thoughts
Your home is important to you, and so is its future. In uncertain economic times, most the equity that we have in our homes can be seen as a bedrock and provides us with some sense of financial stability. The choices that you make about your home are yours, but do not make those choices without the right information.
At Pavey Law, our real estate lawyers and family lawyers regularly deal with issues such as these where two areas of law intersect. There is much to consider when your relationship is ending, from real estate matters to employment law to tax consequences. Legal advice from a knowledgeable professional can help you make those smart decisions.
We regularly work with families and homeowners from across the Cambridge, Kitchener, and Waterloo regions. Contact us today to set up a consultation.