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When a couple begins to have marital difficulties, it may not be easy to stay under the same roof.  If one spouse asks the other to leave, does the other actually have to go away?

Let’s start with the type of relationship.  There are two basic situations:

  • The couple has had a formal marriage ceremony or
  • It is common law, where both parties have lived together for several years but no formal ceremony was held.

Legal Marriage

Under the Ontario Family Law Act, couples who are formally married live in what is termed the matrimonial home.  That is a special term for married couples.  The law says that both parties have an equal right to possession of the matrimonial home.  This is valid until a formal agreement is reached and signed that designates the specific spouse that will be entitled to the home, or until a court order is issued declaring one party to have exclusive possession.

If one of these things happens, it usually contains provisions for the non-residential spouse to return for a specific purpose (like retrieving personal effects) on an agreed upon date and time.

It also does not mean that the spouse still residing in the home has any right to do anything with any of the possessions, nor can that person still in possession mortgage or sell the home.  Everything has to stay “as is” until the separation and divorce is all settled.

Common Law Marriage

Now, if there was no ceremony and the parties are common-law spouses, things are a little different.  In that case, the home belongs to whichever person bought and owns it, the person who is listed as the registered owner. Under the Family Law Act (FLA), common law spouses do not share any property rights outside of their title rights.

Under the FLA, there are some circumstances where the departing spouse can have a right to stay, but these are exceptions and can only happen with a court order.  Each case is looked at separately and a unique decision is made by the Court. Exceptions also exist in cases of dependency or special need.

Summary

When a marriage is so broken that the parties are separating, there are laws that govern whether one spouse can force the other to leave the home.  If the couple is officially married, they both own the residence and they are each entitled to live there regardless of the who is on the title.  If it is a common-law relationship, the title holder owns the home and has possessory rights to it. Each couple’s situation is different and a court order may be needed to confirm who is entitled to what, including the home.

The best protection against this situation is a well-drafted cohabitation agreement or marriage contract before there is a problem along with a good dose of legal advice.