Does a Marriage Contract Protect My Home or Cottage From Division in Ontario?

A marriage contract can change how a home or cottage is counted in property division, but it cannot take away your spouse's right to live in the matrimonial home. Any term that tries to limit a spouse's rights under Part II (Matrimonial Home), including the equal right to possession, is unenforceable. Both spouses have an equal right to possession of a matrimonial home, whoever owns it.

Possession and value are different questions. Spouses can agree by a domestic contract that certain property is not to be included in net family property. Without a contract, no date-of-marriage deduction or gift or inheritance exclusion applies to the matrimonial home, and its full value must be shared unless the spouses agree otherwise. Whether a cottage is a matrimonial home depends on whether you and your spouse ordinarily occupy it, or occupied it at separation, as your family residence.

If only one spouse has an interest in the home, the other spouse's right of possession is personal as against the owner and ends when they stop being spouses, unless a separation agreement or court order says otherwise. How a contract treats your property depends on its wording, so have a lawyer review it.