You were married. Now you’re separated (but not yet divorced). You own a Matrimonial Home jointly with your former spouse.
Can you change the locks on your shared home?
In Ontario, generally, the legal answer to this is no. Let’s break down why.
What Happens During A Separation?
Ontario requires couples to separate for a period of one year before filing for divorce. The only reason a separation can be skipped is in the case of cruelty or adultery.
Family property is everything you or your spouse owned together from the date of marriage to the date of your separation. This family property is shared equally between you unless there was a separate agreement stating otherwise.
Family property often includes:
- The Matrimonial Home
- Bank accounts
- Insurance policies
- Other property
- The amount of any increase in the value of the excluded property since the relationship started
Excluded items are things like homes you owned before the relationship started, gifts or inheritance that were given to only one spouse (you must be able to prove this), and some trust property.
If the value of any of those items owned separately increases during your relationship your spouse gets half of that increased value.
Who has possession of your matrimonial home?
According to Ontario legislation, both married spouses have an equal right to possession of a Matrimonial Home after separation.
The equal right to possession will exist even after separation, unless there is a separation agreement in place or a court order that gives one spouse the sole possession of the home (i.e “exclusive possession”).
Until either a separation agreement or court Order has been made, neither spouse can formally exclude the other from the home.
How is possession of your matrimonial home decided?
The separation agreement or court Order should set out which spouse has exclusive possession of the home or what will happen to the Home upon separation.
This does not mean your spouse can just come and go as they please.
It is important to note that if a spouse has already moved out of the home, they may not be entitled to come and go as they please.
Adequate and reasonable notice of any intention to return to the home must be made before doing so.
If the matter proceeds before a judge for a court Order, the judge will assess a variety of factors. These factors include:
- The financial position of both spouses
- Past violence to the other spouse/children
- Availability of other suitable and affordable accommodation
- Any existing court orders to enforce obligations and/or the best interests of any children involved
The above factors help the Courts form a decision in regard to who should get exclusive possession of the matrimonial home.
Exclusive possession does not give one spouse the right to sell or dispose of any of the furniture or other belongings in the home.
It is not until all of the separation and divorce issues, such as equalization of all the family property, have been fully outlined by a court that one spouse can get this right.
You also have the option for an uncontested divorce. An uncontested divorce means you and
How to Stop Your Spouse From Coming in Uninvited
If you have not yet obtained a separation agreement or court order you cannot stop your spouse from entering the jointly owned home.
It is in your best interest to keep notes of the times when you feel entrance was unjustified.
Obtain a court order or separation agreement as soon as you can to ensure your spouse can not continue to come in uninvited.
Did this article answer your questions or concerns about matrimonial home possession? If you would like to speak with one of our lawyers regarding further issues related to home possession, please contact us at (416) 840-1475 or schedule your free initial consultation here.