Divorce is complex and emotionally draining. It can take away everything you’ve worked hard to build over the years. It gets more complicated regarding property division, especially if you don’t know who should get what. Experienced Ontario family law lawyers can provide the legal counsel and support you need during this trying period.
Who Gets What in a Divorce in Canada?
Under Canada’s constitution, marriage is an equal partnership that assigns equal responsibility to the spouses for running the household and earning an income for the family. The sentiment also reflects in property division during a divorce. It gives the divorcing partners equal rights in the division of marital property.
However, there are many factors to consider, including the non-financial contributions of the non-income earner in the union. The law considers what someone stands to lose in the divorce, not just what they stand to gain. For example, if a spouse sacrifices their career to care for the family, they may leave the marriage without accumulating many assets.
The court will consider these sacrifices from a monetary viewpoint to put a value on their contributions. It helps to have an agreement before getting into marriage to protect your future and rights if a divorce arises. A prenuptial agreement goes a long way in making the division of assets easier. Toronto marital agreement lawyers can oversee the process to protect you.
What Happens to the House in a Divorce?
In Ontario, both partners in a divorce have equal entitlement to the marital home. The rule applies even if one of them purchased the house before marriage. A matrimonial home gets its distinction if it’s the property the couple was living in at the date of separation. Each party has equal rights to remain in the house regardless of whose name is on the papers.
A matrimonial home includes more than just the family house and refers to any other housing they own, such as condos and mobile homes. If you’re unsure about the property or properties you hold and whether they might be considered a matrimonial home in a divorce, consult Thornhill property division lawyers for legal counsel.
Who Has to Leave the House in a Divorce?
The law in Ontario allows both of you to continue accessing the house until you amicably agree on who keeps it. If you can’t reach a consensus, a judge may rule on the matter and grant the home to one of the spouses.
To arrive at a decision, the judge will evaluate written agreements about the property and consider the children’s best interests. Another consideration factor is how much each spouse earns, how much they will each take from the marriage, and if they have alternative places to live.
It’s worth noting that this rule only applies to couples in a legal marital arrangement. It doesn’t work for common-law spouses as they don’t have automatic entitlement if they don’t seek a legal marriage. These factors highlight the importance of consulting Toronto marital agreement lawyers before marriage to understand your risks and options.
What Happens to Common-Law Couples?
Spouses married under common law have it a little different in dividing the matrimonial home in a divorce. The law considers common-law spouses as those who have lived with their partner for three years or sooner if they have a child together. Under these circumstances, the marital home is divided according to ownership based on who bought it.
The house will be divided equally if it’s in joint ownership. The process can get complex if one party claims to have contributed more than the other. They can advance trust claims to reflect each party’s contributions, a process that calls for the expert input of a skilled Toronto property division lawyer to determine what each party gets.
What if One Partner Wants to Stay and the Other Wants to Sell?
If there is a dispute on how to divide the matrimonial home, four strategies are possible to ensure each person gets what they’re entitled to:
- Agree to sell the home on the open market and split the proceeds
- One party buys out the other spouse, hence owning the property outright
- Divide the house into two separate units so that each person lives in their designated space
- Maintain shared ownership and convert it into a rental property
Whichever option the spouses choose, they’re both responsible for the costs and expenses associated with the process. The good thing is that they can deduct the expenses from the proceeds of the home if they decide to sell it.
Can I Buy Another Home During Separation?
Once you decide to quit your marriage, you may be eager to move on and start afresh by moving into a new home. While you think the move may help you heal and rebuild your life fast, it may work against you from a legal perspective. Your ex-spouse could become suspicious and pursue court action.
Typically, your ex-spouse has two years from the date of the divorce to file a claim against the property. They could argue that you purchased the property during your separation, which is actually part of the marital assets. As such, they can demand that it be incorporated into the equalization calculations. Consult marital agreements lawyers in Thornhill and Toronto to protect your rights.
An Experienced Business Lawyer Protecting Your Rights in a Divorce
Divorce cases can be complicated in the division of matrimonial property. It’s advisable to have a prenuptial agreement when getting into marriage, not in anticipation of a divorce, but to protect your rights and future if the unexpected happens. A prenuptial agreement prevents you from losing what you have worked so hard for and also makes marriage dissolution more seamless.
Our Thornhill property division lawyers work hard on behalf of clients to ensure their marital agreement is handled correctly. We can help you decide what can be legally enforced and put that in writing to protect your future and family. We also provide legal representation if a property division case goes to trial. Contact us to schedule an initial consultation.