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We're married. Who gets to stay in our home if we separate or divorce?

The rules about who can stay in your home depend on whether you're married or in a common-law relationship.

Only married couples can have a matrimonial home. Common-law couples cannot have a matrimonial home, so they have different rights.

Your matrimonial home is the home where you and your married partner lived together before you separated. It can be a house, townhouse, apartment, or co-op unit.

You can have more than one matrimonial home. For example, you may have an apartment and a cottage.

After you separate, you and your partner have:

  • an equal right to stay in a matrimonial home that is located in Ontario
  • a right to claim a share in the value of a matrimonial home wherever it is — in Ontario or anywhere else — as part of an equalization payment dividing property

This is true even if only one married partner has legal title or owned the home before marriage.

The equal right to stay in the home is not about who owns the home. It is only about who can live in the home. Sometimes this is called the "right to possession" of the home.

This means that even if your partner is the only owner of the matrimonial home, they can't lock you out or refuse to let you into the home without an agreement or court order.

If you rent a matrimonial home, you still have an equal right to stay in the home even if your partner is the only tenant on the lease.

You and your partner's equal right to stay in the home lasts until one of the following happens:

  • There is a separation agreement that says one of you can't live there.
  • There is a court order that says one of you can't live there.
  • You sell your matrimonial home or your lease ends.
  • You get divorced: If you get divorced and you aren't on the title to the matrimonial home, you're no longer considered a spouse with an equal right to stay in the matrimonial home. This is an important reason why you might not want to get a divorce until you have an agreement or court order about what to do with the matrimonial home.

If one of you decides to move out, that person does not give up their right to claim ownership of the matrimonial home or to claim a share in the value of the home.

Selling or mortgaging a matrimonial home

You can only sell or mortgage a matrimonial home with the written permission of your partner or with a court order.

Special rules for homes on a First Nations reserve

There are different rules that apply to a home on a First Nation reserve.

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1. Think about whether you can live in the home together

Since both married partners have an equal right to live in the matrimonial home after they separate, you can be legally separated but still live in the same home.

You can "live separate and apart under the same roof". This means you both live in the same home but you don't do things together any more, such as sleep, go out, cook, or eat together. You might continue to live in the same home because it is easier to care for your children together or because it is too expensive to move out.

Whether you and your partner can live separate and apart in the home, even on a temporary basis, often depends on:

  • how tense things are between you and your partner
  • whether someone can afford to move out or has somewhere else to go
  • safety concerns, including if there has been a history of domestic abuse

You should also think about what you want to happen with the home after you and your partner have resolved all of your other issues.

Sometimes neither partner wants to keep the home, or both partners agree that they can't afford the home anymore. Other times, both partners want to live in the home and want the other partner to move out.

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2. Agree on who stays in the home

You and your partner may have to decide on who stays in the matrimonial home after you separate. Some of the things to think about when deciding are:

  • Do you or your partner have other places to live? How quickly can you move to this place?
  • Does one partner need to be in the house? For example, do they work from the home?
  • Are your children going to be affected if they move out? What connections do the children have to the location, for example, schools, friends, and activities?
  • Should the parent who mostly looks after the children be the person who stays in the house?

If one partner agrees to move out, they may move out on certain conditions, such as:

  • they get time to get their personal items, such as clothing and paperwork
  • mail is redirected to their new address
  • they still get to see the children

If one of you moves out, you and your partner need to decide who pays for costs such as electricity and property taxes. You might also need to consider who does yard work, home repair, or maintenance tasks for the home.

Agree to sell the home

You and your partner may agree to sell the home. Everyone who is an owner of the home needs to agree for the home to be sold, unless you have a court order.

A married partner must also agree to sell a matrimonial home, even if they are not an owner. You need their written permission or a court order to sell a matrimonial home.

If your partner is going to sell their share of the home to you, you usually have to qualify for a new mortgage without your partner. You and your partner also need to agree on how much you pay to buy the home. You can ask a real estate professional to help you agree on the value of the home.

If neither of you is going to keep the home, you should think about how to sell your home. For example, you might want to agree to have the home cleaned up and listed for sale by a certain date. You might also want to agree on a real estate agent to help you.

You should also include in your agreement what happens with the sale money from your home.

If you and your partner agree, or a court orders that the home be sold, the mortgage and real estate fees are paid first and then you and your partner divide the money that remains. You might not divide this amount evenly. It depends on what the title to your home says and what your agreement or court order says.

You can agree on who lives in the home or to sell the home in a separation agreement. Your separation agreement can also deal with how to divide property, support, custody, and access.

If you and your partner cannot agree on who lives in the matrimonial home and how to divide property, you can get help from a family law professional or go to court.

You can agree on how to divide the matrimonial home and other property at any time, but remember the time limit to make a claim in court for an equalization payment is 6 years after you and your partner separate or 2 years after you get divorced, whichever happens first.

Because you may be giving up important rights by moving out of the matrimonial home or signing a separation agreement about who lives in the home, you should think about talking to a lawyer.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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3. Go to court to get an order for exclusive possession

If there is a lot of conflict in the home and it is very difficult for you or your children to live in the same home as your partner, you may want to go to court and ask for an order for exclusive possession of the matrimonial home.

This means you and your children can stay in, or return to, your home and your partner isn't allowed on the property. It also allows you to change the locks so that your partner cannot get into the home.

This order doesn't affect who owns the home. You are still not allowed to sell or mortgage the home without your partner's permission.

When deciding whether to make an order for exclusive possession, the court looks at things like:

  • both partners' finances
  • if other suitable and affordable living arrangements can be made
  • if one partner has been abusive towards the other or the children
  • if there are any existing court orders

If there are children, the court looks at the best interests of the child by paying special attention to:

  • how a move might affect the child
  • the child's views and wishes, in some cases

An order for exclusive possession may also include specific responsibilities for the partner who lives in the home. For example, the partner living in the home may have to pay the utilities and be responsible for care of the home.

An order can also say if the other partner is allowed to pick up their personal items from the home or if they are allowed to visit the home. For example, they may only be allowed to go to the home to pick up the children for access visits.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

There are 3 courts that deal with family law issues in Ontario. But only 2 can give you an exclusive possession order if you don't own your home – the Superior Court of Justice and the Family Court branch of the Superior Court of Justice. The Ontario Court of Justice cannot give you an exclusive possession order.

You can talk to a lawyer who can help you understand what the law says you have to do to protect your rights after you separate and divorce. A lawyer can also explain your options and help you through the process.

If you can't afford to hire a lawyer for your whole case, you can still speak with one for general advice. Some lawyers also provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Reviewed: 
September, 2015