While nobody likes to imagine going through a separation and divorce, it does happen to a large portion of homeowners every year. So it’s important to understand what goes into selling a matrimonial home and dividing up this large asset between spouses.
What is a “Matrimonial Home”?
In legal terms, this is a property that has been regularly occupied by both spouses. Even if only one spouse is on title as the owner, it is still considered a common joint asset and will always be divided 50/50 between both spouses. Yes, there are some exceptions to this rule (such as a pre-nuptual agreement) but in general terms, the matrimonial home is equally owned by both parties.
This means, in order to sell the home, both spouses have to consent to the sale and agree to its terms.
But what if I bought the house myself before we got married?
Again, your matrimonial home is where you both lived as a married couple and is now considered a joint property to be divided equally.
As you are probably aware, a separation agreement is a common part of dissolving a marriage. This is a legal document that sets out guidelines on how the relationship will function going forward. It may discuss dividing up assets, childcare, expenses etc. while you are waiting for the actual divorce to take place.
If you or your spouse wish to sell your house, it is crucial that a legal agreement be drawn up and prepared, documenting that both parties are aware that the matrimonial home is to be sold. You may wish to also cover such things as:
- how much you will each spend on staging or renovations to get the property ready for sale
- who can live in the property until it is sold
- who will take care of the property’s maintenance until it is sold
Your spouse has the right to take you to court if they can prove that they were not made aware of the sale and this was all done unilaterally.
What if we can’t agree that the home should be sold?
If both spouses can’t agree to how/when to sell the home, a judge will decide this for you and how the proceeds will be split up.
Another alternative would be to have one spouse “buy out” the other spouse’s share of the home. We can also help with with the paperwork on this kind of inside sale, and we’ll even provide you with a proper evaluation of what the current value of the property is.
Get your team of experts together
As you will be navigating your way through this process, it’s important to have people on your side that will be looking out for your best interests. Ask family and friends for their recommendations on a top notch:
- divorce lawyer
- real estate agent
- real estate lawyer
This team of experts will work on your behalf to make sure the sale of the home goes smoothly. Selling a home during a divorce is a little different than usual, so they will collectively walk you through the entire process and ensure you got your fair share of the proceeds.
Can my ex and I have different real estate agents?
Of course! While it is easier to agree on one REALTOR® for your sale, you and your spouse might feel more comfortable with each choosing an agent. We can accommodate that. In this case, the two real estate agents would “co-list” the home and work together to get a mutually beneficial offer for both of you on the listing.
How do we handle showings at the house? Buyer feedback?
Your real estate team will take your lead and follow your preferences when it comes to buyer showings.
If you and your ex both want to be consulted on every showing request, we can do that for you. However if only the spouse still living in the home wants to be notified of showings, that’s fine too. We can provide any feedback we receive from these buyers to both of you so you’re both aware of what people have thought of your home.
What happens when we get an offer?
We may ask for additional time from any buyers that bring an offer, so that both you and your spouse have time to consider it. This is called a “longer irrevocable”. You may agree to accept the offer as is, or negotiate with the buyer further to come to more agreeable terms. Your REALTOR® in conjunction with your lawyers can help with this process if you’re having trouble coming to an agreement.
What other situations may arise when selling our home?
If my spouse moved out during our separation, can I change the locks?
The short answer is, no. Your spouse is still allowed entry to the home, unless a judge prevents them from doing so. In fact, if you change the locks on the property it can actually negatively affect you in court.
What about our cottage or investment property? Is this considered joint property if I bought it myself before we were married?
You may have a second home that isn’t your primary matrimonial home. Even if you purchased your cottage or investment property before you were married, if you both benefitted from it as a married couple, it generally is considered joint property as well.
You can learn more about the laws that protect your rights when selling your home in the Family Law Act of Ontario.
Our number one priority is to make sure you’re getting the best advice from the proper person during this transition in your life. We will answer some of the most common questions, but please consult your legal team before taking any steps.
In the end, as your real estate agent, we want to ensure this transaction is smooth and efficient as possible for all parties involved. Together we can help you move forward.