The Matrimonial Home – Unique Property

By Ashley Dutcher

In Nova Scotia, once a marriage ends the property-division provisions of the Matrimonial Property Act are triggered and property is divided essentially in equal portions between the spouses, subject to certain rules and exceptions.

That said, there are several aspects that make the matrimonial home unique.

1. The “matrimonial home” is strictly defined by the Act.

The term refers to any dwelling and real property occupied by a person and that persons spouse as their family residence and in which either or both of them have a property interest other than a leasehold interest. Provided it is a family residence, this can include any type of housing including condominiums and mobile homes. Note that there can be more than one matrimonial home: as long as it meets the legislative definition, even a second home such as a frequently-used family cottage can constitute a matrimonial home which is subject to the Act’s special rules.

2. Original ownership of the home becomes irrelevant after marriage.

If a spouse brings a home with them into the marriage and that home becomes the family residence, then the law deems it to be the matrimonial home, even though that spouse held title and was the home’s registered owner prior to marriage.

3. Once a home is designated a matrimonial home, both spouses are equally entitled to possession of it upon separation.

Once the spouses separate, neither of them can legally exclude the other from the matrimonial home, no matter who owned the home prior to marriage. An exception to this is when a spouse brings an application to the court to be granted exclusive possession of the matrimonial home and that application results in a court order giving them exclusive possession of the matrimonial home.

4. A matrimonial home can only be sold if both spouses consent.

If one spouse attempts to sell the home without the consent of the other. This same rule applies to an attempt by one spouse to mortgage or otherwise encumber the home without the knowledge or consent of the other.

If a consensus cannot be reached, then either spouse may apply to the court for an order that the home be sold under the Matrimonial Property Act.

5. Possession of the matrimonial home to the child.

Where a surviving spouse does not reside in the matrimonial home at the time of the death of the other spouse and a child resides in the matrimonial home at that time, the court may, on the application of the child, direct that the child be given possession of the matrimonial home until either the child attains the age of majority or when the child is attending a postsecondary educational institution, until the age of twenty-four years or such other order as the court deems appropriate.

This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.

Ashley Dutcher is a lawyer with Burchell MacDougall LLP’s Elmsdale office located at Suite 205 in MacMillan Centre, 550 Highway #2.