Can a marriage contract or separation agreement waive matrimonial home rights in Ontario?

Yes, but with important restrictions. The Family Law Act allows spouses to deal with matrimonial home rights in a domestic contract — either a marriage contract (entered before or during marriage) or a separation agreement (entered after separation). However, a marriage contract cannot require a spouse to give up possession of the matrimonial home while the parties are living together, though it can deal with what happens to the home on separation.

A separation agreement can address who gets possession of the home, how the property is divided, and can include a release of matrimonial home rights. Once both spouses have received independent legal advice and the agreement meets the formal requirements of the Family Law Act, it can govern the home in place of the default statutory rules.

Any domestic contract dealing with the matrimonial home should be prepared carefully. Courts can set aside provisions of a domestic contract if they find procedural unfairness, failure to disclose financial information, or unconscionability. For a waiver of matrimonial home rights to be enforceable, both parties should have independent legal advice and full financial disclosure.