What happens to the house when we divorce?

What counts as the matrimonial home

Any property that was ordinarily occupied by both spouses as their family residence, at separation or before, is a matrimonial home under the Family Law Act — this can include more than one property, such as a house and a cottage used regularly by the family. Ownership of shares in a housing cooperative that entitle the holder to occupy a unit is treated the same way.

This definition matters because the Act's special rules for the matrimonial home — equal possession and required consent to sell or mortgage — apply only to it, not to every property either spouse owns.

Equal possession, regardless of title

Section 19 of the Family Law Act gives both spouses an equal right to possession of a matrimonial home, even if only one of you is on title. This right exists independently of ownership, which is why moving out does not give it up, and why the spouse whose name is not on the deed cannot simply be excluded.

Equal possession is not the same as equal use forever — it can be varied by agreement, or by a court order for exclusive possession, but it is the default until one of those happens.

Selling or mortgaging it requires consent

Under section 21, no spouse can dispose of or encumber an interest in a matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court has authorized the transaction. A sale or a new mortgage arranged without the required consent can be set aside later, which is why lenders and lawyers check marital status carefully on any transaction involving a home.

This rule applies even to a spouse who is the sole owner on title — being the only name on the deed does not remove the other spouse's right to consent.

Exclusive possession

Where you cannot agree on who stays, a court can order exclusive possession of the matrimonial home to one spouse, on an interim or final basis, considering the children's best interests, each spouse's financial position and other housing options, and any history of violence between you. An order for exclusive possession does not transfer ownership; it only decides who lives there.

Section 21.1 also lets a court restrain conduct in a shared home while both of you are still living in it, which is a narrower and often faster remedy than a full exclusive possession order where the issue is behaviour rather than housing itself.

The home and equalization

For married spouses, the matrimonial home gets special treatment in the equalization calculation: unlike most other property, its full value on the valuation date counts, without deducting what either spouse brought into the marriage — even if one of you owned it outright before the wedding. This can significantly affect the equalization payment where a home was owned before marriage and simply became the family's residence.

Deciding whether to sell, have one spouse buy out the other's interest, or keep it temporarily for the children's stability, is usually a separate negotiation from the equalization figure itself, though the two are closely connected financially.