A matrimonial home is defined at section 18(1) of the Family Law Act as “every Property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence”. It is important to note that only married spouses may have a matrimonial home. Unmarried parties, including parties who are in a common law relationship, do not qualify under this section of the Family Law Act.
Spouses may have more than one matrimonial home. Spouses who regularly live in a traditional home, but have a cottage where they regularly spend time, may be found to have two matrimonial homes. The key is that the spouses must regularly live in the second property for it to be considered a matrimonial home. As an example, a property that is owned jointly by the spouses but is rented out to a third party at all times will likely not qualify as a matrimonial home.
A matrimonial home may also be a property that is located in another country. For instance, in a case where spouses own a beach home in Bermuda which is only used for four months a year, that home may qualify as a matrimonial home.
The matrimonial home usually includes both the home itself as well as the property on which it is situated. An important exception occurs whenever spouses own a home located on property used for reasons other than residential. Section 18(3) of the Family Law Act finds that “if property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence”. This means that the portion of the property used for non-residential uses, such as farming, may not be considered part of the matrimonial home.
Which properties will be considered a matrimonial home is fact specific and based on factors such as if the parties are married, if both parties regularly used the home and if the property is used for residential purposes.
An experienced lawyer can provide you with information pertaining to your particular situation and the best advice for moving forward.
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