Right to Live in the Home After Separation

After a family separation, both spouses also have a right to live in or “occupy” the matrimonial home. If one spouse is able to buy out the other spouse’s equity in the home, then they may be able to stay in the home. However, if neither spouse is able to afford to buy out the other, the matrimonial home may need to be sold, which the Court can order under the Partition Act.

The Court has the power to decide that one spouse should have the right to live in the house and the other spouse cannot live in the house, which is called “exclusive possession”. This requires either consent from the spouse leaving the home or a Court Application and Motion to force one spouse to leave. Unless exclusive possession is ordered, neither spouse has a right to exclude the other from living and occupying the home (eg. by changing the locks).

In a Motion for exclusive possession of the matrimonial home, the Court will consider a number of factors, including proof that you or your children are in danger, whether it is in the best interests of the children, any existing separation agreement between the parties, the financial situation of the parties and the availability of alternate accommodations for the parties. It is best to consult with a lawyer to determine whether the facts of your case would likely merit an order for exclusive possession.

Exclusive possession of the matrimonial home can be ordered on a temporary or permanent basis, and does not change the ownership or right to sell the home.