In most circumstances, the “matrimonial” or family home will be considered family property. As such, if considered as a basic accounting matter, the issue of what will happen to it upon separation or divorce should be a simple one to resolve. For instance, if the couple’s only financial asset is the home, it will have to be sold. If there are additional family assets and the couple’s net worth is at least double the value of the home, then one of the parties may choose to keep the home.
However, as is the case with most family law issues, the answer is often not that simple.
The “matrimonial” or family home is often an asset of great economic value, but it also represents a number of other things for a couple. For example, the home may represent certain goals, dreams, security and community, especially when there are children. The loss of the home may result in a changed standard of living which can add to the emotional stress of the separation. If the couple has children, the home may hold unique psychological significance for the children or there may be a desire that the children stay in the family home because of a perception that this may protect them from the impact of the relationship breakdown. On an encouraging note, a move to a new home may raise positive emotions associated with opportunity and a chance to begin a fresh new life.
The family home may be a key card at play in negotiating and litigating family law cases.
Individual needs and goals differ and as such, what can and should be done with the family home after separation or divorce requires a consideration of each couple’s unique facts and circumstances. Some of the factors that may be considered include:
- the total value of the family assets;
- whether one of the parties can afford to buy the other parties’ interest in the family home;
- are the circumstances such that the couple should agree to rely on section 92 of the Family Law Act and reapportion the family assets;
- will one party be liable to pay spousal support to the other party (if so, one may choose to pay this as a lump sum may and tie it into a deal relating to the family home);
- if there are children, what will the impact of a move be on the children – it is in the best interests of the children to promote the welfare of the children and minimize the impact of separation upon them (how and if parents share parenting time may be a factor);
- would it be significantly unfair in the circumstances not to order that one of the parties be granted possession of or interest in the family home, taking into account section 95 of the Family Law Act; and
- is there any reason that the family home should be considered excluded property.
If you are going through a separation or divorce, it is prudent to contact a competent family law divorce lawyer to explore your options relating to your family home and other family assets.