Is a House Owned Before Marriage Marital Property in Ontario?

Many people buy a home first and marry later, then assume the house stays theirs. In Ontario, that assumption often turns out to be wrong, because the home you live in as a family is treated differently from your other property.

This article explains the general rules when a marriage ends, how the matrimonial home fits in, and what you can do to protect a home you owned beforehand. Your facts matter a great deal, so a family lawyer can confirm how this applies to you.

The short answer for married couples

In Ontario, the full value of the family (matrimonial) home must be shared on separation, even if one spouse owned it before the marriage or received it as a gift or inheritance, and it is divided equally unless the spouses agree otherwise.

In plain words, the matrimonial home is generally the home where you and your spouse lived together as a family. If your pre-marriage house became that home, the usual protection for pre-marriage property does not apply to it in the same way.

How the numbers work

Property is usually divided through an equalization calculation. Each spouse's net family property is the value of what they own on the separation date, less debts and excluded property, minus the value of what they owned on the marriage date, less debts. The spouse with the larger result pays half the difference as an equalization payment.

The matrimonial home is the big exception. When working out the marriage-date deduction, the family home is left out. Ontario's Court of Appeal has treated it the same way: the pre-marriage value of a home that became the matrimonial home cannot be deducted.

What if you are common-law?

Common-law partners are not legally required to split property acquired during the relationship the way married spouses are. That does not mean a partner has no claim at all. Other legal arguments may be available depending on contributions and the facts, and that is a question for a lawyer.

If you marry later, the married rules above would apply from then on, so it is worth getting advice before the wedding rather than after.

Ways to protect a home you owned first

The most direct tool is a marriage contract. A marriage contract signed before or during the marriage, in writing, signed by both and witnessed, can cover property division and who stays in the home. A domestic contract can also exclude property from net family property or change the usual result.

• Each partner should have their own lawyer, not a shared one.
• Exchange full financial information so the agreement is based on real numbers.
• Be clear about what the contract covers: the home, its growth in value, and who may stay in it.
• Do not count on a court to rebalance things later. An unequal division requires showing that equalization would be unconscionable, which is a very high threshold.

If you are reading this after you have already married, a contract can still be signed during the marriage. Keeping records of what the home was worth on the day you married can also help with other parts of the calculation, even though it will not reduce the home's shared value.

Timing and next steps

There is a court time limit for equalization: six years from separation or two years from the divorce, whichever comes first. Do not let it slip while you are sorting out living arrangements.

• Write down when you bought the home, when you married, when you started living there as a couple, and any later changes such as renovations or a mortgage refinance.
• Gather statements showing the home's value and your debts at the marriage date, if you can, and any records of gifts or inheritances.
• If you are planning to marry, ask a family lawyer about a marriage contract before the wedding, and expect your partner to need their own lawyer.
• If you are separating, get advice early about the equalization calculation and the time limit.
• If you are buying a home before marriage, speak with a real estate lawyer about how you will hold title, and with a family lawyer about how marriage may change the picture.

Frequently asked questions