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Selling the matrimonial home of divorcing sellers creates certain challenges for both realtors and lawyers.

Most married couples do not want to consider the possibility of divorcing at the time they buy their matrimonial home.

Title to matrimonial home can be taken in three distinct ways:

1. Sole owner: where only one spouse takes title.
2. Tenants-in-common: when both spouses take title with each owning a specified percentage.
3. Joint tenants: where both spouses take title with a right of survivorship so that upon the death of one spouse the other spouse automatically becomes sole owner of the home. The joint tenancy option avoids the home falling under the need for estate administration and paying the applicable Estate Administration Tax.

This decision on how to take title to the matrimonial home will be based on many factors including, but not limited to, financial situation, tax implications, and estate conveyancing.

We are often asked if only one married spouse goes on title, is the non-titled spouse out of luck? For example, the husband is self-employed or professional, so the home is in the wife’s name as sole owner for liability purposes. Will this hurt the husband if they split up?

The short answer is no. The Family Law Act states that the non-titled spouse has an equal right of possession and is, in general, entitled to one-half of the value of the matrimonial home upon breakdown of the marriage. This matrimonial home rules does NOT apply to non-legally married partners.

Usually the next question is: When the titled spouse sells the matrimonial home does the non-titled spouse have a say?

The short answer is yes. The titled spouse will sign legal documents stating if he or she is a spouse or not. If he or she is a spouse, he or she must confirm or reject if the home being sold is their matrimonial home. If it is the matrimonial home, the non-titled spouse must also sign papers confirming the non-titled spouse’s consent to the sale of the home.

The most common queries we receive from realtors are:

1. My clients are in the middle of a nasty divorce and they are both on title to the matrimonial home. Who do I take instructions from?
2. The matrimonial home is in the wife’s name, and the husband is out of town (so she says).  The wife wants to list the properly and have it sold ASAP. Can I do this?
3. When the matrimonial home is sold and the divorcing sellers cannot agree on how to divide the proceeds, what happens?
4. If one spouse is a dirty rotten cheater, does the court punish him/her in family law proceedings?

Our role as real estate lawyers is to help the divorcing sellers and their realtors with answers and solutions to the first three questions above. We leave the answer to the fourth question to the family law lawyers.

If you have any questions about this topic please do not hesitate to contact us at (905) 270-6660 or e-mail us at: Info@kormans.ca.

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David H. Korman is the Managing Partner at Kormans LLP. His practice areas include residential and commercial real estate transactions, commercial leasing and private and institutional lending. You can reach David at dkorman@kormans.ca.

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