How to sell a Matrimonial Home During Separation and Divorce
How to sell a Matrimonial Home During Separation and Divorce
Matrimonial Home
A matrimonial home is a property which is owned by one or both married spouses and ordinarily occupied by them at the date when the parties separate. There can be more than one matrimonial home, for example, a cottage in Muskoka or vacation house in Florida.
Separation & Divorce
A "separation" is when the spouses are living separate, and the relationship has ended with no prospect of reconciliation.
A "divorce" is when a court legally ends a marriage by issuing a divorce Order.
Property Division
In Ontario, the property division provisions of the Family Law Act are triggered during separation and divorce, for married spouses.
Spouses who are going through separation and divorce must divide their marital assets and sell property. Neither spouse can rent, sell or mortgage the matrimonial home without the other spouse’s permission.
A spouse can designate a home as their matrimonial home and register that designation with the land registry office.
The matrimonial home is treated differently when dividing assets on separation. If a spouse brings a home with them into the marriage and that home becomes the family residence, then the law deems it to be the matrimonial home, even though that spouse held title and was the home’s registered owner prior to marriage.
Under the Family Law Act, the full value of a matrimonial home must be shared upon separation. This forms an exception to the normal rule that applies to the division of other matrimonial property that on separation each spouse is entitled to deduct the marriage-date value of any property he or she brought into the marriage.
Selling Through Court Order
A matrimonial home can only be sold if both spouses consent. Courts can order partition and sale of the matrimonial home when one spouse unreasonably frustrates the process or withholds their consent.
To avoid the sell of a matrimonial home, the opposing spouse must establish that prejudice would result if the home were to be sold.
Whenever a court is to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider various factors.
If a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to consider the following:
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The best interests of the children who may be impacted by the order;
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Any existing court Orders, including existing Orders for support;
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The financial position of both spouses;
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Any written agreement between the parties; and
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Any violence committed by a spouse against the other spouse or children.
Listing and Sale by a Realtor
You and your spouse need to retain a realtor to list and sale the property by preparing a:
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Listing Agreement
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Setting the Listing Price
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Preparing the Home for Sale
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Accepting an Offer
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Setting the Closing Date
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Selecting the Real Estate Lawyer
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Deciding what to do with the Sale Proceeds
If the separated spouses wish to retain separate realtors and enter into a co-listing agreement, then the following issues need to be decided:
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Which brokerage will be the listing brokerage?
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What price will the home be listed at?
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Who will prepare the home for sale?
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What listing strategy will obtain the best results for the sellers?
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What is the ideal closing date?
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What is the best method of communication for all parties?
The listing and sale of a matrimonial home is a process which requires legal advice from divorce and family lawyers.
Contact our office for a consultation on your rights and obligations in relation to your separation and divorce.
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