Married spouses are each entitled to possession of the matrimonial home, even if only one spouse is the owner. Following a separation, living in the same house can be difficult and stressful. So, what can you do? Can you require your spouse to leave the house? The short answer is no, at least not without a court order. If living in the same house has become untenable, you and your spouse either need to agree as to who will remain in the house or you will need to get an order from the court for exclusive possession of the matrimonial home.
When will a court grant exclusive possession of the home to one spouse over the other?
Section 24 of the Family Law Act deals with orders for exclusive possession. The section provides the criteria for the court to consider in making an order for exclusive possession. Among the factors the court will consider are the best interests of the children involved, including their wishes and the effects on them of a move, the financial position of both spouses, the availability of other suitable and affordable accommodations and any violence committed by a spouse against the other spouse or children.
It will not be sufficient to claim that it is simply uncomfortable to continue living in the same household.
Who pays the costs for the home?
If you obtain an order for exclusive possession, the court has the authority to order that you make periodic payments to the other spouse, which is referred to as “occupation rent.” Some of the factors the court will consider in determining whether to make an order for “occupation rent” include, among others, the conduct of the non-occupying spouse, including the failure to pay support, the conduct of the occupying spouse, timing of the claim, expenses being paid by the occupying spouse, whether the children reside with the occupying spouse. You may also be required to pay for expenses related to the matrimonial home.
What happens if you breach an order for exclusive possession?
If an order for exclusive possession has been made allowing your spouse to occupy the home and you contravene the order, you may be arrested, without a warrant, and if convicted, be ordered to pay fines.
If you are separated and want to know more about orders for exclusive possession of a matrimonial home, please contact one of our family law lawyers who can provide you with advice as to your specific circumstances.