Family Residence: Rights On The Matrimonial Home In a Divorce
What is a family residence under the Quebec family laws?
What are your rights on the matrimonial home?
What happens to the house in a divorce?
These are great questions and we’ve got answers!
In this article, we will break down all you need to know about the family residence.
Are you ready?
Let’s get started!
What is a family residence
The Quebec family laws clearly define the concept of the family residence.
The family residence is the place where the spouses choose to ordinarily live and conduct their principal activities.
The family residence is awarded special protection when married couples separate and file for a divorce.
As a result, it’s important to have a clear definition of what is a family residence so the spouses know on which property they will have a special entitlement.
In the case where a married couple owns only one family home, that property is their family residence as they conduct all their family activities out of that home.
In cases where spouses own several properties and spend time in each of those properties, then a thorough evaluation is needed to define which of those properties is considered to be the family residence.
Only one property can be qualified as a family residence.
In the absence of a clear choice made by the spouses as to their family residence, the law will presume that the family residence is the residence where the members of the family carry out their principal activities.
So the family residence is the house or property playing a central part of the family activities.
Why is the family residence important
What happens to the house in a divorce?
To answer this question, we must first determine that the house is considered a family residence.
The family residence is important as the spouses can claim an equal share of its net value under the Quebec family laws regardless of which spouse actually owning the property.
In other words, whether the property is owned by the husband or the wife, both spouses have the right to half of the net value of the family residence.
The family residence is one of the assets composing the family patrimony.
The assets forming the family patrimony, such as the family residence, furniture garnishing the family residence, vehicles used by the family, RRSP and pension plans are equally shared between the spouses for what was acquired during the marriage.
Since there can only be one family residence or matrimonial home forming the family patrimony, the legal definition of the family patrimony is highly relevant.
What are the matrimonial home rights
Spouses separating have many questions relating to their matrimonial home.
What are my rights if I have a matrimonial home?
How is the matrimonial home split between us?
Can I sell the family residence?
Let’s look at some of the rights associated with the family home.
Ability to sell the family home
During their union or following their separation, the spouses cannot sell the family home without the authorization of the other spouse.
This means that you cannot sell the matrimonial home without having received the consent of the other.
In Quebec, a notary instrumenting the sale will typically require the other spouse to intervene in a sale contract to ensure that the sale of a property, qualified as the family residence, is duly authorized by the other spouse.
Charging a mortgage or lien against the matrimonial home
A spouse, although the sole owner of the family residence, cannot charge the property with a mortgage, lien or a real right in favour of a third-party without the consent of the other spouse.
This is important to protect the equity in the family home.
If a spouse can refinance or pull out the equity in the family home, the other spouse’s share will be dissipated rendering the protection of the family residence useless.
By preventing a spouse from financing the property or transacting on the property equity, the law is effectively protecting the share of the other spouse in half of the net value of the property.
Declaration of family residence in the land register
A declaration of family residence is a declaration registered in the land registers on the family home informing the public that this property is the family residence of the parties.
This is a useful tool when the family residence is owned by only one spouse.
With this declaration registered against the property, a notary cannot perform a transfer or a sale without the spouse registering the declaration to agree to its discharge.
Effectively, the declaration of family residence serves to ensure that the spouse owning the property is unable to sell or transfer the property without the formal implication of the spouse having registered the declaration.
Right of use and possession on the family home in a divorce
When a spouse files a divorce application, the court has the power to award the use and possession of the family residence to the spouse to whom it awards the custody of a child.
This means that the court can authorize either spouse to use the family residence, whether they own it or not, during the divorce proceedings so they can continue taking care of the children.
If the spouses are unable to reach an agreement on the terms of the right of use, the court may render a judgment establishing the conditions of use and possession.
Exclusive right to live in the family residence
In some cases, due to the nature of the conflict between spouses, a spouse may want to use the family residence exclusively during the legal proceedings.
The spouse must file a safeguard order or a legal action to request from the court the exclusive use of the family residence during the divorce proceedings.
The spouse making such a request must provide detailed justification as to the reason why an exclusive use of the family residence is sought.
The court will evaluate the request and decide based on the inconveniences that such a request may have on the spouses, the impact on the children and other factors such as where the other spouse can go live.
Can a spouse change the locks to the family residence
Fundamentally, both spouses have a right to stay in the family residence during the divorce proceedings.
Having said that, can one spouse change the locks and prevent access from the other?
The answer is no, but it depends!
If you are confronted with a situation where your security and safety is at risk or that of your children, it may be justified to change the locks.
However, if you change the locks without any serious underlying justification, the court may see that as an unreasonable act on your part.
The best thing is to consult with a family lawyer who can advise you on your rights.
If a spouse changes the locks and prevents the other from accessing and using the family residence, the spouse locked out can file a safeguard order requesting relief from the court.
The court will evaluate the merits of the request and render a judgment.
Takeaways
The family residence, also commonly referred to as the matrimonial home or family home, benefits from a special protection and treatment under the Quebec laws.
The first important legal treatment is that both spouses are entitled to half of the net value of the family residence regardless of title or ownership.
In other words, whether the property is fully owned by one spouse, partially owned by either of them, the total net value of the family residence will be equally shared between the spouses.
Yes, the house is split 50/50 in a divorce!
In the event a spouse does not own the family residence, the law provides further protections to ensure that the spouses’ share in the family residence is protected.
The law prohibits a spouse from selling the family residence without the consent of the other.
Also, the owner of the family residence cannot mortgage, refinance or withdraw equity from the property without the consent of the other.
Another protection is to publish a declaration of family residence against the property in the land registry of Quebec.
When the declaration is published, the public is made aware that this property is a family residence and is therefore protected by law.
The only way the property can be sold or transferred is for the spouse publishing the declaration agrees to discharge it.
The matrimonial home is a protected property and is important in the context of a divorce.
It may be prudent to speak with a divorce lawyer to fully understand your legal rights and obligations with respect to your rights in the house.
We hope this article helped you better understand the notion of family residence under the Quebec family laws.
Good luck!
