Under Family Law rules, the matrimonial home is a property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence. It is possible for spouses to have any number of matrimonial homes. Married spouses are given special rights under the Family Law rules.
The Family Law rules say that both spouses have an equal right to possession of a matrimonial home. This right exists even if title to the matrimonial home is registered in the name of only one of the spouses, although in that case, the right of the other spouse to possession is personal as against the titled spouse—that is, the right can be asserted only against the spouse who holds title to the property—and ends when the couple ceases to be spouses.
A court may make an order granting one spouse exclusive possession of the matrimonial home or part of it for a period ordered by the court. Without a court order, one spouse, even he or she is the sole registered title owner of the property, does not have a right to force another spouse to leave the matrimonial home on a marriage breakdown.
The court is required to consider the various factors before granting an exclusive possession order to one spouse. The court sees if there is any written agreement between the spouses, the best interest of the children, the financial position of the parties, the existence of any property and support orders, availability of other affordable and suitable accommodation, and if there is any violence committed by any spouse against the other or against the children. It is easier to convince the court for orders if the parties can show that there was a domestic violence and that the order is required in the best interests of a child.
If one spouse wants to sell the matrimonial home or mortgage it, he or she requires written consent from the other spouse, even if the other spouse is not on the title. Otherwise, a court order is required to do so. Spouses may release their rights to matrimonial property under the separation agreement. If one spouse tries to transfer the matrimonial property without proper consent or a court order, the court may rule that the transfer or sale is not valid.
Ordinarily, if title to property is held in joint tenancy and one of the joint tenants dies, the other joint tenant receives full title to the property by right of survivorship. Under Family Law rules, however, the right of survivorship does not apply if a spouse dies while owning an interest in a matrimonial home as a joint tenant with a third person and not with the surviving spouse. In this case, the joint tenancy is considered to have been severed immediately before the spouse’s death.
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