There are two issues under the Family Law Act concerning a matrimonial home:
- Possession,
- Equity.
The Act says that you can’t deal with the issue of possession. But, of course, you could deal with equity.
Possession
That means that one spouse can never change the locks and prevent the other spouse from living there, even if it said so in a domestic agreement (pre-nup). That provision would be void.
The right to continue to live in the premises is a personal right as against the other spouse. If that spouse loses possession to the Bank, then, this is not an action against the Bank.
Equity
When dealing with the matter of the equity in the home, a contract (pre-nup) could say that the matrimonial home is excluded property and therefore the non-titled spouse will not share. And, that’s perfectly fine.
Division of Property
If nothing is said at all, then the arrangement will be:
- Both spouses share equally in the profits made during the marriage, and
- Both spouses share equally in the equity in the matrimonial home.
Brian Madigan LL.B., Broker