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Separation and its Impact on the Matrimonial Home

Kanata CA personal injury, family, and real estate law firm

My husband and I are separating after three years of marriage. The home we have lived in was mine prior to our marriage and it remains in my name alone. There is significant equity in the home. I understand that our assets will generally be divided equally, but does he have any claim on the equity in the home?

It is important to understand the treatment of the matrimonial home upon a marriage breakdown. A matrimonial home is defined as “a property that…was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence…” Therefore, in this case, your home is the matrimonial home for legal purposes.

Upon the breakdown of the marriage, the Family Law Act provides that the parties calculate the net value of their respective assets at the time of marriage and at the time of the breakdown of the marriage, and then equalize the assets that were accumulated during the marriage. One key exception to the calculation of net assets is, in fact, the matrimonial home – if one party brought it into the marriage, he or she does not get to claim it as their own asset for the purposes of equalization.

Many people consider this to be generally unfair. If a party owned an investment account, only the increase in its value would be subject to equalization. However, in the case of a matrimonial home, the legal presumption is that the equity in the property is to be divided evenly between the parties.

There are ways that parties can safeguard themselves in your situation. One way is through a prenuptial contract, and another is by selling the house prior to separation.

There are situations in which you can argue for an unequal distribution of assets – those depend very specifically on the facts of each case. A family lawyer would be able to advise you of your chances of advancing a claim for an unequal distribution in your favour.

 

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