When you separate or divorce one of the main concerns is who will get to stay in the house. It is of course always better to agree than have the court impose an order.
What happens to the house depends on whether or not it is matrimonial property. We therefore need to consider the various scenarios:
If you are married and living in a house your spouse owned before you married or even met then you have very limited rights. As you are married, you are entitled to occupy the property for a period of time unless you leave voluntarily or are forced out by a court order.
If you weren’t yet married when the home was purchased but it was purchased as a property for you both to live in as a family home, then the house is matrimonial property and even if your name is not on the title you still have a right to occupy and make a claim on it.
If the house was purchased when you were married, you are still entitled to occupy and also can make a claim on it.
If the property was purchased in joint names either before or after you marry then you are entitled to occupy it and make a claim on it.
So what types of claims can you make?
There are a number of options available:
Property transfer order.
You ask that the property is transferred into your name. This might not be possible. The court can’t make this order unless you have the lenders consent if there is a mortgage. If you can’t afford the mortgage, the court can’t transfer the house.
Order for sale.
You could ask the court to order that the property is sold. In many divorce actions. It is common to see one party asking the court for a transfer and the other asking for a sale.
If you choose to go down the ADR route – Collaborative Practice or Mediation you can be a lot more creative. For example, one party can elect to leave their capital in the house until the children are grown up and finish school or leave home.
You can keep the property in joint names if one party can’t afford to take on the mortgage on their own.
When you first decide to separate you might decide to remain living in the same house but separately. That can become untenable pretty quickly. Some couples elect to have an arrangement where they live in the family home on different days so that the children have continuity and stability. This is known as a “nesting” arrangement.
In some extreme cases you can apply to the court for an exclusion order. If there is domestic violence or mental abuse which is injurious to your health or the children’s the court can pronounce an interim order which ejects a spouse from the matrimonial home.