Matrimonial Home In DivorceJeff Kahane2020-04-05T14:58:04+00:00
Who Keeps The House? The Matrimonial Home in Alberta
Who Gets The Matrimonial Home?
The term “Matrimonial Home” is applied to the property in which a couple resides at the time of separation. In the event a couple is not married the term “Primary Residence” will then be applied. The following is a brief summary of how matrimonial homes are dealt with in separation and divorce. For more specific information on your specific situation it is important to speak with one of the family law lawyers at Kahane Law Office. We can be reached at 403-225-8810 in Calgary, Alberta.
Who Stays In & Who Moves Out Of The Matrimonial Home
When parties separate the Matrimonial Home is often one of the largest assets owned by the couple. The matrimonial home is also usually the asset to which parties have the greatest emotional attachment. The main questions relating to this major asset are as follows:
Deciding who keeps the matrimonial home
There are two main factors that go into who retains the matrimonial
home. The first is who wishes to retain the matrimonial home. The second is who can afford to keep it. In some situations neither party want to nor can afford to retain the matrimonial home, thus there is immediate agreement to sell the home. In other cases, people go to court as both parties can (and want to ) retain the matrimonial home.
This gets further complicated if there are children involved and if there is a joint desire to keep the children enrolled in a particular school pending the completion of a school year; so as to shelter the children from the impacts of the separation.
What will happen if parties cannot agree who is to move out?
In the event parties cannot agree on who is to move out a party may bring an application for exclusive possession of the matrimonial home. This is when a court is asked to remove a party from the home. The family law lawyers at Kahane Law office are able to help secure an exclusive possession order for the matrimonial home. This decision is governed by section 19 and 20 of the Alberta Matrimonial Property Act, if married. The Court’s decision is based on the following factors:
Availability of other accommodation within the means of both parties;
The needs of any children residing in the home;
The financial position of each of the spouses;
Any other made by a court with respect to the property or the support or maintenance of one or both of the spouses.
The Court May Have Creative Rulings For Matrimonial Homes
When contemplating bringing an application like this it is important to know that the Justices can be very creative and may come up with solutions beyond that proposed by either party. Decisions such as the children remaining in the home and the parents rotating week on / off in the home are not uncommon. It is also important to know that if there are limited funds then there needs to be good reason to remove a party from the household. Mere annoyance or wanting your partner to move out it not sufficient if there are no funds for them to attain accommodation elsewhere; often parties are ordered to remain in the house until it is sold.
Who makes payments for the property once a party moves out?
Unless ordered by a court to do otherwise, the general rule is that whoever is residing in the matrimonial home is responsible for the costs of the home. This approach is used given the fact that the party who has moved out now also has their own set of expenses they are incurring. Furthermore, the party remaining in the home is the one receiving the day-to-day benefit of living in the property.
There are exceptions to this rule when the party in the home has very little income available and needs financial assistance to make ends meet. Usually there would have to be children involved who are remaining in the home and that party to be the main caretaker of the children for them to be entitled to remain it the home given they cannot afford it.
Another practical implication of this issue is that often times a mortgage is registered in joint names. If the party that remains in the home refuses to pay the mortgage or only pays 50% then that will unfairly damage the credit of the other party.
Can a party remain in the matrimonial home even if their name is not registered on title?
Yes. It does not matter how ownership of the property is registered on title with the land registry office. In the event your name is not on title you will want to be registering a Certificate of Lis Pendens (“CLP”) to put on title. A CLP will protect your interest in the home by ensuring your partner does not refinance or sell the property without your knowledge or consent.
What is “Occupational Rent”?
Occupational Rent is a claim the party who does not live in the house post-separation has against the party living in the house. The simplest way of understanding this legal concept is asking the question: If neither party lived in the house and it was rented, how much net profit would be made? That profit would then be presumably split 50/50 between the parties.
That 50% value is the value of the Occupational Rent claim that the party living out of the home has against the party remaining in the home.
Claiming expenses incurred to be paid by the party who moves out?
As a general rule, the party who remains in the matrimonial home can seek reimbursement for 50% of the payment in principle of the mortgage, 50% of the property taxes and 50% of the other necessary repairs and maintenance for the home. Other expenses such as the interest paid on the mortgage and utilities are the sole responsibility of the party who remains in the matrimonial home as they are getting the benefit of the use of the property.
Lawyers For Matrimonial Home Division
Understanding your rights and options when deciding what to do with your matrimonial home is important. Learn more about the law regarding most peoples biggest asset, their home. You can reach us directly in Calgary, Alberta at 403-225-8810 (toll-free at 1-877-225-8817), or email us directly here.