The Process of Selling a Matrimonial Home Post-Separation

Introduction

When a relationship ends in separation, the question of what to do with the matrimonial home often arises. This can be a stressful time for both parties involved, and the legal complexities surrounding the sale of the matrimonial home can add to the emotional toll. It's not uncommon for one spouse to wish to sell the home after separation, but this can lead to disagreements if the other party is not in agreement. This article aims to shed light on the legal options available to both parties based on the ownership status of the home and the factors that a court will take into account when deciding whether to authorize a sale.

Legal Provisions for Sole Owners

When the spouse who wants to sell the home is the sole owner, the law requires them to seek a court order. This is stipulated in ss. 21(1)(c) and 23 of the Family Law Act, R.S.O. 1990, c. F.3. It's important to note that this limitation only applies to matrimonial homes. Therefore, if a spouse solely owns a property that isn't classified as a matrimonial home, they have the liberty to dispose of or encumber it as they see fit, unless there is an agreement or court order that states otherwise.

Legal Provisions for Joint Owners

The situation becomes slightly more complicated when the home is jointly owned. In this case, the spouse desiring to sell must seek a partition and sale under ss. 2 and 3 of the Partition Act, R.S.O. 1990 c. P.4. A joint tenant typically has a prima facie right to sale prior to the trial, however, this right can be challenged if the other joint tenant's claims would be prejudiced by the sale. The courts have made it clear that orders directing the sale of the matrimonial home before the resolution of the Family Law Act claims should not be made as a standard practice.

Factors Considered by the Court

The court's decision to authorize a sale prior to trial isn't a straightforward one. It involves considering several factors such as whether one spouse will be unfairly disadvantaged by the sale or if the home is inevitably going to be ordered to be sold at the trial. The court also considers the best interests of any children involved. This includes their ages, their need for stability by staying in the same home and neighbourhood, and other pertinent factors.

Additionally, the court will consider how close the trial is, whether the parties are capable of maintaining the home (for instance, making mortgage payments, property tax payments, etc.), and if there's a possibility of an unequal division of net family property and vesting of the home being ordered at trial.

Conclusion

The post-separation sale of a matrimonial home is a complex process, influenced by several factors. These include the ownership status, the best interests of children, the potential impact on both parties, and the proximity to trial among others. By understanding the legal provisions and factors that the court considers, both parties can navigate this process more effectively. While it's a challenging time, having this knowledge can aid in reducing the stress involved and contribute towards smoother negotiations.

THIS BLOG IS FOR EDUCATIONAL PURPOSES ONLY AND DOES NOT NECESSARILY REFLECT THE VIEWS OF LAILNA DHALIWAL LLP.

The Content is offered free of charge strictly on an "as is" basis and is intended to provide users with general information only. Lailna Dhaliwal LLP does not warrant or guarantee the accuracy, completeness or fitness of the Content for any particular purpose.

The material provided on the Lailna Dhaliwal LLP/JSDLAW PC website is not intended to provide legal advice or opinions of any kind, and does not constitute legal advice.

No one should act, or refrain from acting, based solely upon the materials provided on this website, without first seeking appropriate legal or other professional advice.

Sending or receiving of these materials does not create a lawyer-client relationship.

Do not provide any confidential information to Lailna Dhaliwal LLP unless and until we have given you a written retainer agreement confirming that we can represent you.