The matrimonial home is a legal designation uniquely targeted to protect married spouses. Section 18(1) of the Family Law Act (FLA) defines the matrimonial home 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. ”

The matrimonial home is enshrined in the FLA for the protection of spouses on the dissolution of marriage, both as it relates to the terms of occupancy and its special status in the context of the calculation of equalization payments.

But the matrimonial home designation continues to have significance in the estates context. Under s. 26(1) of the FLA, if a spouse dies owning a matrimonial home in joint tenancy with a third party, the tenancy is deemed to have been severed before death. And when one spouse dies, the surviving spouse, if a non-owner, is entitled to possession of the home rent-free for sixty (60) days under s. 26(2) of the FLA. Each of these provisions affords the surviving spouse with protection to advance entitlements otherwise enshrined by statute: (i) the right to elect under the FLA and (ii) the right to claim dependant’s relief under Part V of the Succession Law Reform Act.

Outside of statute, the entitlement of the surviving spouse to the matrimonial home will depend on other factors such as: (i) whether the home is held in joint tenancy or as tenants in common, (ii) to what extent entitlements may be compromised under a separation agreement or marriage contract, and (iii) the terms of the Will (most commonly, whether there is a spousal trust).

What is important to remember is that the rights afforded to the matrimonial home are possessory and do not create an interest in the land.

Lastly, non-titled married spouses or common law spouses may be able to assert claims to an interest in the matrimonial home arising from contributions made to the upkeep and maintenance of the property. In addition, there could be claims in equity advanced on the principles of unjust enrichment and joint family venture. As always, all claims turn on their facts.

Thanks for reading,

David Morgan Smith