Unless spouses have a marriage contract setting out what happens to the matrimonial home upon the breakdown of the marriage, the special rules set out in the Family Law Act apply. Regardless of whose name is on the deed, each spouse has an equal interest in the matrimonial home.
Section 18(1) of the Family Law Act 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 their spouse as their family residence, and the rights and obligations of the spouses. This may also include cottages or vacation homes if used regularly.
According to Section 24(3) of the Family Law Act, a court can grant one spouse exclusive possession of the matrimonial home, where that specific party will be able to reside in the home without the other party. Prior to granting the order, the court will consider: (1) any written agreements formulated by the parties; (2) financial positions of the parties; (3) ability to find suitable accommodations; (4) best interest of the children; and (5) any violence imposed by any spouse against the others or the children.
Without a court order or a valid agreement stating otherwise, neither spouse, regardless of whether they are the sole title owner, could force another spouse to leave the matrimonial home following the breakdown of their relationship. Neither spouse could sell or transfer interest in the matrimonial home without providing proper written consent to the other spouse, regardless of the name on title. If a spouse attempts to sell or transfer interest of the matrimonial home without proper consent or a court order, the court will render the sale invalid. If a spouse wishes to relinquish their rights of the matrimonial home, it can be done through a separation agreement written by a family law lawyer.
If the title of the matrimonial home is held in joint tenancy and one of the joint tenants dies, the other joint tenant will receive full title of the property by right of survivorship. However, the right of survivorship may not apply in circumstances where the spouse passed away while owning an interest of the matrimonial home to a third party.
Blackburn Lawyers is made up of a team of dedicated lawyers who are pleased to provide support and guidance with your family law matters. If you and/or loved one has questions about the rights and obligation to a matrimonial home following the breakdown of the relationship, please contact our lawyers today.
Disclaimer: This blog sets out a variety of information relating to the law that is to be used for educational purposes and is not legal advice for your particular situation. The author of this blog does not intend for this blog to be a source of legal advice.
Written by: Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
