When you jointly-own your family home (called a matrimonial home in the context of married spouses) with your separated spouse, can you be forced to sell it? Family lawyers are often asked this question by our clients. The answer? It depends.
In this article, I provide you with a brief and general overview of how Ontario Courts decide what to do with a jointly-owned matrimonial home when one spouse wants to keep it, and one spouse wants to sell it.
The Rights of Joint Tenants
It is common for married spouses to jointly-own the home in which they live. The legal term for this is called “joint tenancy”, and joint-tenancy gives specific legal rights to each tenant. In Ontario, the Partition and Sale Act gives the Court the power to order the sale of a jointly owned property when one of the joint tenants wants to sell it. The other joint tenant has a corresponding obligation to permit the sale. These are considered fundamental rights of joint tenancy.
The Rights of Married Joint Tenants
When the joint tenants of a property are married, there are additional factors for a Court to consider before making an order for the partition and sale of the matrimonial home. The starting presumption is that the Court is required to compel partition and sale, unless the opposing party (i.e. the party who doesn’t want to sell) has demonstrated that there is a sufficient reason, recognized in law, why the Court should exercise discretion to refuse the request for sale. Every request for an order for partition and sale, and every request to prevent such an order, must be considered within the unique family facts of the joint tenants.
The following are some but not all questions a Court may consider when deciding whether to grant an order for sale of a matrimonial home:
- Has the party seeking the sale engaged in malicious, vexatious, or oppressive conduct relating to the partition and sale issue?
- Would the sale of a jointly-owned property unfairly prejudice a legitimate family law claim in the proceeding?
- Is there alternative affordable housing available to the parties?
- What would be the impact of any potential sale on the children of the parties?
As with many aspects of family law, your success in securing or opposing an order for partition and sale will depend on the particular facts of your family situation. If you would like advice about how the law applies to your specific family situation, then please contact the Family Law Group at Cunningham Swan. We are here to help!