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The matrimonial home

The matrimonial home

In Ontario, the general philosophy of the Family Law Act, with respect to property in the case of the marriage breakdown,  is that the spouses will share the increase in the value of their combined property during the years of marriage. Obviously, this statement is a simplification. However, this is the approach found that section 4 of the Family Law Act.

Therefore, a spouse is entitled to a deduction for the net value of his/her property on the date of marriage. However, this does not apply to a matrimonial home and the family lawyers generally agree that this is due to a legislative mistake.

Therefore, if a spouse owns a home on the date of marriage which still exists on the date of separation, that spouse cannot claim a deduction for the net value of the equity in that home as of the date of marriage. However, if that home was sold during the marriage, that spouse can claim a deduction for its net value. This is nonsensical however; it is “the law”.

Let us look at this from another vantage point. Two (2) friends get married on the same day. Friend 1 has $100,000 in the bank whereas Friend 2 has $100,000 in built up equity in a home.

Ten years later, the 2 friends separate on the same day. Friend 2 still has his home which was used as a family residence during the marriage.

Result

Friend 1 “gets” a deduction for $100,000 whether or not that $100,000 still exists on the date of separation whereas Friend 2 cannot deduct the $100,000 in equity that existed on the date of marriage. This makes no sense.

To properly protect yourself in such a case, contact Marc J Coderre (family lawyer Orleans/Ottawa) to discuss the possibility of entering into a marriage contract.

Marc J Coderre – Orleans, Ontario family lawyer

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