When a couple decides to end their relationship, a broken heart isn’t the only factor at play. Many emotional and legal points must be dealt with, one of which is access to the family home.
If you are in this situation or are considering a separation (although we hope it works out!), here is some basic information that may help getting through it easier.
Married Spouses: Who Owns the House?
Coming to an amicable agreement on how shared property is to be divided is always the preferred outcome in the event of a separation. However, walking away from the family home is still often difficult as it is usually both spouse’s most valuable asset, both financially and emotionally.
So, which partner has the right to stay? Technically, both. In the case of a legal marriage (religious or civil union), each spouse can live in the family home, whether they co-own it or not.
In all events, if the couple can’t agree on how to dispose of the property, a judge will decide. But the financial—and emotional—costs of such a recourse are not to be underestimated.
To Change the Locks or Not?
Since both spouses maintain the right to occupy the home when a separation occurs, neither can change the locks to stop the other from entering. There are, nevertheless, exceptions to this rule.
Upon starting divorce proceedings, either party—the applicant or the one being served—may request that a judge urgently grant a safeguard order. This order gives one spouse exclusive use of the property, temporarily excluding the other during the completion of divorce proceedings. Depending on the situation, obtaining this order can take a few days or a few weeks.
The judge’s decision will consider the children’s best interests if the couple have any, how moving might negatively impact either spouse and their children, and, if so, their ability to relocate to a new residence. In cases involving domestic violence, the spouse who maintains access to the family home may prevent the other from returning if the latter has been arrested for a domestic violence-related offence and their release conditions prohibit them from contacting their spouse or going to the family home.
In situations where both spouses co-own the family home, the partner who can no longer occupy the residence typically has the right to receive financial compensation. All the more so if they never stopped paying their share of the property expenses or if they will incur additional costs to find a new dwelling.
What About Common-Law Spouses?
The headline-making 2013 separation between Éric and Lola generated a lot of attention among Quebecers into family law. This court case highlighted the legal divide between married couples and common-law spouses, and the issues that arise in the event of a separation.
When a relationship between an unmarried couple comes to an end, common-law partners don’t have the same rights as their married counterparts. To mitigate this inequity, partners should sign a cohabitation contract which clearly stipulates, among other things, who will get to stay in the family home. This contract should be signed when the couple is head over heels with each other and both partners have each other’s best interests at heart.
And yet, many common-law couples don’t have a contract drawn up. In which case, they must decide if they will sell the house and divide the proceeds, or if one of them will retain the property and be required to buy back their ex-spouse’s share. If disputes arise, a mediator can help.
In the end, as with all separation agreements, the simplest solution is to settle things amicably.