What is known as exclusive possession?
A common query of any couple separating in copyright is what the term of ‘exclusive possession’ means. Questions like, “Does it mean ownership of the house?”, or “In whose name will title be registered?” arises often.
Please note that legal ownership of the house does not necessarily come with an order of Exclusive Possession of Matrimonial Home. Moreover, exclusive possession does mean that one spouse will get to live in the home and the other will be forced to live somewhere else because such orders are personal in nature. It is against the other spouse only and do not confer an ownership interest.
The Family Law Act (FLA) provides:
- Section 19(1): Both spouses have an equal right to possession of a matrimonial home.
- Section 19(2): When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession is personal against the first spouse and ends when they cease to be spouses unless a separation agreement or court order provides otherwise.
- Section 24(1): Regardless of the ownership of a matrimonial home and its contents, the court may, on application, order exclusive possession to one spouse.
- Section 24(2): The court may issue temporary or interim orders for exclusive possession
Who gets to live in Matrimonial home?
In determining which spouse gets to live in the matrimonial home, the court considers various factors to ensure a fair and just decision. The primary consideration is the best interest of any children involved. Courts prioritize the well-being and stability of children, often allowing the parent with primary custody to remain in the home. Other factors include the financial positions of the spouses, any history of domestic violence, and the overall health and well-being of each spouse.
What kind of spouses are entitled to exclusive possession?
For married couples’ exclusive possession can be awarded to either spouse. The Family Law Act provides a framework specifically for married spouses, giving them a more substantial legal basis to claim exclusive possession. Common-law partners may still seek exclusive possession, but their claims are often more complex and require additional legal considerations. Common-law spouses may be able to argue:
- The common-law spouse might have a trust claim on the property, potentially leading to an injunction that permits the spouse to stay in the home until the matter is resolved.
- According to Section 34(1)(d) of the Family Law Act (FLA), possession of the home might serve as a form of support payment.
- Under a restraining order issued per Section 46(1) of the FLA or Section 35(1) of the Children’s Law Reform Act, possession of the home could result from the order rather than being its primary intent.
How is exclusive possession awarded?
Exclusive possession is not granted automatically and requires a court order. The spouse seeking exclusive possession must file an application with the court, demonstrating why they should be granted the right to remain in the home. The court will then evaluate the application based on the factors mentioned above and may grant temporary or interim orders before making a final decision.
Please note that an order of exclusive possession is severe in nature. This is because it initiates the removal of one spouse from their residence immediately. Because of the sensitivity of the matter, the court does not make orders of exclusive possession limitlessly. This is why during this process, both parties should hire a family lawyer to navigate the complexities of family law. It is also advisable for spouses to try and reach an amicable agreement outside of court to avoid the emotional and financial toll of litigation. If you need to speak to a dedicated family lawyer, then call us at 905-405-0199.
What Happens to the Spouse Who is Removed from the Matrimonial Home?
When a court grants exclusive possession to one spouse, the other spouse is required to vacate the matrimonial home. This can be a challenging and disruptive experience, often involving the need to find alternative housing and adjust to a new living situation. However, the court seeks to ensure that this transition is handled fairly, especially in cases where the home is jointly owned.
In some cases, the issue of occupation rent arises during the process of determining exclusive possession. Occupation rent refers to compensation paid by the spouse who remains in the matrimonial home to the other spouse, recognizing the exclusive use of a jointly owned property. The court evaluates the financial situation of both spouses, the cost of maintaining the home, and whether the remaining spouse solely benefits from the property’s use. This concept ensures fairness by compensating the non-resident spouse for their share of the property’s value. Addressing occupation rent helps balance financial responsibilities and benefits between spouses, contributing to an equitable division of matrimonial assets.
How Nanda & Associate Lawyers Can Help?
Solving the complexities of family law, particularly in cases involving exclusive possession of the matrimonial home, requires expert legal guidance. At Nanda & Associate Lawyers, we bring extensive experience in family law matters to provide the support you need during these challenging times.
Did you know we’ve been honored as the Top Choice Family Law Firm for the past eight consecutive years? Our dedicated team of family lawyers Mississauga is committed to helping you understand your rights, representing your interests in court, and striving for the best possible outcome in your case.