Married Spouses: Who Owns the House?
Coming to an amicable agreement on how shared property is to be divided is always the preferred outcome in the event of a separation. However, walking away from the family home is still often difficult as it is usually both spouse’s most valuable asset, both financially and emotionally.
So, which partner has the right to stay? Technically, both. In the case of a legal marriage (religious or civil union), each spouse can live in the family home, whether they co-own it or not.
In all events, if the couple can’t agree on how to dispose of the property, a judge will decide. But the financial—and emotional—costs of such a recourse are not to be underestimated.
To Change the Locks or Not?
Since both spouses maintain the right to occupy the home when a separation occurs, neither can change the locks to stop the other from entering. There are, nevertheless, exceptions to this rule.
Upon starting divorce proceedings, either party—the applicant or the one being served—may request that a judge urgently grant a safeguard order. This order gives one spouse exclusive use of the property, temporarily excluding the other during the completion of divorce proceedings. Depending on the situation, obtaining this order can take a few days or a few weeks.
The judge’s decision will consider the children’s best interests if the couple have any, how moving might negatively impact either spouse and their children, and, if so, their ability to relocate to a new residence. In cases involving domestic violence, the spouse who maintains access to the family home may prevent the other from returning if the latter has been arrested for a domestic violence-related offence and their release conditions prohibit them from contacting their spouse or going to the family home.
In situations where both spouses co-own the family home, the partner who can no longer occupy the residence typically has the right to receive financial compensation. All the more so if they never stopped paying their share of the property expenses or if they will incur additional costs to find a new dwelling.