The Matrimonial Home
Probably the number one question asked when people first separate, “Can I change the locks on our home?” If you lived in it with your spouse at the time of separation then your home is likely what is called a “matrimonial home”. Under the Family Law Act, a matrimonial home is defined as ‘every property in which a person has an interest and that is or was at the time of separation, ordinarily occupied by the person and his or her spouse’.
When you separate, decisions about the matrimonial home will need to be finalized, including equalizing the equity, changing the ownership title, dealing with the mortgage and perhaps even the selling of the home.
The Top 3 Divorce Mistakes People Make
1. Hiring a lawyer before understanding all their negotiation options
2. Succumbing to emotions at the expense of their financial future
3. Not starting with a smart, legal and financially savvy go-forward plan
Can I Change the Locks?
So can I change the locks on our home? In a nutshell, no you cannot change the locks without either permission from your spouse or an special Order from a judge. If your home is a matrimonial home, under the Family Law Act, regardless of the ownership, both you and your spouse have an equal right to possession of the home. This means that even though your spouse moved out of the home, they can come back into the home and do not need to ask your permission to do so.
You cannot exclude your ex from the home without an order from the Court. Your ex is entitled to live in the property and if you do change the locks, they are entitled to have the locks removed. This means that they can get a locksmith in or contact the police if they are not being allowed to enter the family home.There are very limited circumstances in which you can change the locks without any consequences and before you do anything you should seek legal advice if you changing the locks is a really big issue.
If you are thinking about doing this, remember that changing the locks may unnecessarily escalate your separation and start you both on a very aggressive footing and may hinder your from being able to deal with other issues in an amicable matter.
Can I Stay In The Home?
If you are married (as opposed to common law), you both have an equal right to stay in your home – even if only one name appears on the title. Since both of you have a right to stay in your home, neither of you can sublet it, rent it, sell it or mortgage it without the other’s permission. This is true even if you rent and your lease is in only one of your names.
What if I am Afraid of My Spouse?
If I am afraid of my spouse can i change the locks then? If you are fearful that your spouse or partner or your former spouse or partner will hurt you or your children, you will want to apply to the court for what is a restraining order. A restraining order is made by a judge at the family court to help protect you and your child(ren).
Once put in place. a restraining order will list conditions that the person you are afraid of must obey. The restraining order can be general – that the person you are afraid of has to stay away from you – or it can be specific. It can say that the person must not come to your home, to your place of work, to your children’s school or to other places where you often go (for example, your place of worship or your parent’s home).
If the person who has a restraining order against them disobeys a restraining order, the police can arrest them.
What Happens To The Matrimonial Home?
When you separate, the rule of thumb is that the home is going to be sold… either to you, to your spouse or to a third party. It is important to realize that whoever keeps the matrimonial home is actually agreeing to buy out the other party and will have to pay them their half of the equity in the home as well as assume the existing mortgage. This usually means that the person remaining in the home will need to qualify for a new mortgage based on their own income.
How to Avoid A Messy Divorce
- Seriously consider mediation before lawyer litigation
- If at all possible, stay out of the Family Courts
- Gather and organize your financial documents
- Do your homework, understand how divorce works in Ontario