Is a Matrimonial Home Owned Before Marriage Shared in Ontario?

You bought the house before you married. Your spouse never owned any part of it, and your name alone is on title. After a separation, it is natural to ask whether the home is simply yours.

In Ontario the answer is often no, at least when it comes to the home's value. This article explains why a home owned before marriage is treated differently from other things you brought into the marriage, and what can change that result.

The short answer for married spouses

Ontario.ca explains that the family home's full value is shared even if one spouse owned it before the marriage. Being the only name on title does not take the home out of the sharing system.

A matrimonial home is any property in which a spouse has an interest and that is or was ordinarily occupied by the spouses as their family residence. If the spouses have separated, this is judged at the time of separation. A couple can have more than one matrimonial home.

How the sharing works: equalization

Ontario does not usually split each asset down the middle. Instead, each spouse's net family property is worked out, and the spouse with the lower amount is entitled to one-half of the difference between the two. This applies when a divorce is granted, a marriage is declared a nullity, or spouses separate with no reasonable prospect of resuming cohabitation.

Net family property is the value of all property a spouse owns on the valuation date, except excluded property. From that you deduct the spouse's debts and other liabilities, and the net value of property, other than a matrimonial home, that the spouse owned on the date of marriage. If the result is less than zero, it is treated as zero.

Why the pre-marriage deduction does not help with the home

Most property you owned on your wedding day gets a deduction, so only growth after marriage is shared. The home is the exception. No date-of-marriage deduction is allowed for a property that is a matrimonial home. Debts tied directly to buying or significantly improving a matrimonial home are also not netted against the date-of-marriage deduction.

In practice, this means the home is counted at its value on the valuation date rather than only the increase since the wedding. The valuation date is the earliest of five dates, including separation with no reasonable prospect of resuming cohabitation, the date a divorce is granted, or the day before a spouse dies.

Situations that can change the result

• A domestic contract. A marriage contract, cohabitation agreement or separation agreement must be in writing, signed by the parties and witnessed to be enforceable, and it prevails over the Act unless the Act provides otherwise. Spouses can also agree by domestic contract to exclude certain property.
• Gifts and inheritances. Property received as a gift or inheritance from a third person after the marriage is excluded, but that exclusion does not apply to a matrimonial home. Using a gift or inheritance to buy or pay down the family home loses its protection.
• Unequal division. A court may award more or less than half the difference only if equalizing would be unconscionable. Ontario.ca describes this as limited to very special situations where an equal split would be extremely unfair. One listed factor is cohabitation of less than five years.
• Proof. A spouse claiming a deduction or exclusion has the onus of proving it.

If you were not married, the rules differ. Equalization applies only to a spouse as defined in the Family Law Act, which does not include unmarried cohabitants. Ontario.ca says common-law couples are not legally required to split property acquired while living together, and property belongs to whoever bought it. A partner who contributed to the other's property may have a claim, which may require going to court.

What to do next

• Gather the purchase documents, mortgage statements and any records of renovations or payments each spouse made.
• Write down the date of marriage, the date you separated and whether the house was your family residence at separation.
• Collect any marriage contract or separation agreement and check whether it was signed and witnessed.
• Note any gift or inheritance money that went into the home.
• Speak with a family lawyer before signing anything, because the exceptions above turn on the facts.

Frequently asked questions