A divorce or separation can be a highly stressful proceeding for every party involved, not least because of the division of assets. In many cases, spouses might consider certain assets off-limits, but family law courts have more discretion than people realize.
For instance, the court can order the sale of the matrimonial home. This is defined in family law as every property in which either spouse has an interest and is, or was at the time of the marriage, being used as the family residence. This usually includes the family home, but can also include other property, such as cottages, if they were being used by both spouses.
However, to order a sale, the court must meet certain requirements. While the court has jurisdiction under the Partition Act to compel the partition or sale of land or any part thereof, the Partition Act must be read together with the Family Law Act in a family law proceeding. And the Family Law Act can prevent the sale or disposition of a matrimonial home.
It is therefore important to consider the circumstances under which a court will, or will not, order the sale of a jointly owned matrimonial home.
Courts, By Default, Generally Favour Sale
There are several reasons why a court would not order a sale, one of the most obvious being if the spouses have already agreed to sell the home. However, it is worth noting that in the absence of an argument for why the home should be retained, or if that argument fails, the court will generally lean towards ordering the partition and sale of the home, especially at trial.
One argument is that one spouse may wish to sell the home while the primary parent may wish to continue residing there with the children and have exclusive possession.
However, who the primary parent is in the eyes of the court may be a live issue in the case, and yet to be decided. And because this is the type of issue that would be best addressed at trial, where all the evidence is before the court, an interim order to sell the home would be inappropriate, as it could not be reversed.
By the same token, a court would need to consider the best interests of the children, who may be adversely impacted by the sale of a familial residence. The court will also consider how much the spouse wanting to sell the home would be prejudiced if an order for the sale of the home is not made.
Onus Is on Spouse Wishing to Retain Home
Should the arguments against selling the home fail, the onus is on the spouse who does not want the home sold to prove that the other spouse has shown malicious, vexatious, or oppressive conduct in relation to the sale itself. This standard is high: courts aim to promote the economic interests of both spouses, which are often achieved by selling a jointly owned asset like a matrimonial home.
