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Marriage and property rights can pose knotty problems

April 2, 2010 - Updated: April 2, 2010

Marriage and property rights can pose knotty problems

Marriage and property rights can pose knotty problems

March 19, 2010

Mark Weisleder

Special to the Star

Most real estate sales in Canada deal with family homes. Yet it is interesting how misunderstood buyers and 

sellers are regarding what their rights are when buying or selling a family home.

By understanding your rights, you can make informed decisions about ownership of the home, and who needs

to sign documents when the home is sold.

The Family Law Act in Ontario and similar legislation in most provinces recognizes two different kinds of

spousal relationships. The first is a married spouse: two people whose marriage is recognized as legal under

the laws of the province. The second relationship is a common-law spouse, which refers to two people who are

not married but have been living together for more than three years or have been living together less than

three years and who are also the natural or adoptive parents of at least one child.

Under the laws of Ontario and in most jurisdictions in Canada, property rights and the concept of the

matrimonial home apply only to married spouses and not to common-law spouses. The main principle under

the legislation is that when a marriage breaks down, all the property assets that the spouses have

accumulated during their married lives are added together. All these assets form a married couple's "net

family property."

This net family property is then equalized between the two spouses. It makes no difference if a property is

registered in the name of only one spouse. As an example, if on separation $400,000 of property is registered

in the wife's name and $200,000 in the husband's name, the wife pays $100,000 to the husband so that they

are equalized.

If you owned a property before marriage, then the value of the property on the day of marriage is excluded

from the calculation of net family property. For example, if on the date of the marriage one spouse owned a

plaza that was worth $200,000. On the date of separation, the plaza was worth $500,000. Only the gain in

value during the marriage – $300,000 – is included in the calculation of net family property.

However, if one spouse owned a house before the marriage, and both spouses moved into the house and

reside there as a family, the house becomes the matrimonial home and the entire value is included in net

family property. In the above example, $500,000 would be included in net family property if they were still

living in the home at the time of separation. Married spouses can have more than one matrimonial home.

Marriage contracts can change your rights to this 50 per cent equalization. Yet even if there is a marriage

contract that limits the rights of one of the spouses to the family home, both spouses must still sign any

agreement to sell or mortgage the home.

However, if you're living common law and the home is registered in your partner's name only, then you have

no property rights to the home, and your signature is not required to sell the home. For common-law couples

considering buying a home together, in order to protect your rights you must make sure your name is on title

to the property. When your name is on title, your legal interest will always be protected and your common-law

spouse will need your agreement to sell the home. For married spouses, the sale of your family home will

always require both signatures.



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This article was first published in the Toronto Star and is posted on the Mark Weisleder The Author of this article and posted here with his permission.

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