The matrimonial home is usually the most important asset owned by a married couple.
It is not uncommon for couples to come to a dispute over the ownership of the home during a divorce.
When both parties who legally own the matrimonial home – otherwise referred to as joint tenants – cannot come to an agreement pertaining to the division of the matrimonial home following a divorce, the division will be up to the Court to determine.
The Family Justice Court, who has jurisdiction over such issues would determine a fair division of matrimonial assets and other ancillary issues.
What is deemed as a matrimonial home?
According to section 112 of the Women’s Charter, a matrimonial home is a property acquired by one or both parties during the course of the marriage.
In order for a property bought before marriage to be included as a matrimonial asset, it must be proven that this asset was typically occupied by either party or their children along with the couple, for aesthetic, social, recreational, education, transportation or shelter purposes.
It must also be shown that the home was substantially improved during the marriage by both or either party. For instance, the parties must prove that there have been financial and non-financial contributions made towards the property.
Ownership of property
Where there is no agreement as to whether a property should be defined as a matrimonial home, then the parties would need to submit their respective positions through their divorce lawyers to be presented to the Court during an ancillary hearing.
Ultimately, the Court will decide if the property should be defined as a matrimonial asset and whether it is to be included in the pool of assets for the division.
What is joint tenancy?
Joint tenants own an undivided interest in the property. As such, no one party has a larger share over the other.
Joint tenants require the consent of the other party to make decisions regarding the property.
The right of survivorship applies to properties that are held in joint tenancy. This means that upon the death of one tenant, the ownership of the property automatically transfers to the surviving party.
In the case of a divorce, the joint tenancy concept (under land law principles) is not applied. Instead, it is based on parties’ respective direct and/or indirect contributions towards the property.
This means that one party can have a larger share of the property than the other. One party can also buy over the other party’s share based on the fair market value price to be determined. The right to survivorship is lost.
Sale of the matrimonial home
Where the joint tenants are going through an amicable uncontested divorce and are in agreement regarding the decision to sell the matrimonial home, they will need to seek the assistance of an accredited real estate evaluator to conduct an appraisal to determine the value of the home.
The court will intervene when no conclusion is made on the agreed property value and division of the proceeds.
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