Legal Guide · Chinese Divorce Series

The Matrimonial Home Is Not Just "The House Bought at Marriage"
— Ontario's Most Common Misconception Among Chinese Canadians

Author: Miao (Mia) He, Barrister & Solicitor · H Law Firm Ontario · Ontario Family Law Lawyer

Family Law Act, R.S.O. 1990, c. F.3 — Section 18

In a Decade of Practice, I Have Been Asked This Question Countless Times

"Lawyer, is the house we bought when we got married considered a matrimonial home?"

The answer is not necessarily what you think.

In the Chinese divorce cases I handle, misconceptions about the "matrimonial home" are almost universal. This misunderstanding is not merely a conceptual issue—it directly affects your rights and strategies in property division during a divorce. Getting it wrong could mean giving up rights you shouldn't have surrendered, or claiming property to which you are not entitled.

The Most Common Misconception Among Chinese Canadians: Matrimonial Home = The House Bought at Marriage

Many people believe that a matrimonial home is simply the house bought at the time of marriage, or the property where the wedding ceremony was held and lived in afterward.

This understanding is culturally intuitive, but under Ontario law, it is incorrect.

What Exactly Is a Matrimonial Home Under the Law?

According to the definition in Section 18(1) of the Family Law Act:

"A matrimonial home is every 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 their spouse as their family residence."

— Family Law Act, R.S.O. 1990, c. F.3, s. 18(1)

To put the core of this provision in plain terms:

There is only one critical time point for determining a matrimonial home—the date of separation.
It is not when the house was bought, not when you got married, and not the day you moved in.
It is whether the house remains your primary family residence on the date of separation.

The Matrimonial Home Can Change Over Time

This is a crucial point that many fail to realize: The status of a matrimonial home is not fixed; it changes with residential occupancy.

Scenario 1

A couple bought a condo when they got married and lived in it for three years, later upgrading to a larger house and renting out the condo. After their relationship broke down, the wife requested separation—is this condo still a matrimonial home?

❌ No.

On the date of separation, the condo was rented out and was no longer the primary family residence. It is treated as ordinary investment property and is not subject to the special protection rules of a matrimonial home.

Scenario 2

A family owns a primary residence in Toronto and a cottage in Muskoka. They live in the primary residence normally and go to the cottage for long holidays and summers. On the date of separation, both properties were in use—are both matrimonial homes?

✅ Yes, both are.

The law does not restrict a family to only one matrimonial home. As long as a property meets the condition of being "ordinarily occupied... as their family residence" on the date of separation, it can be designated as such.

A Common Follow-up Question: If I Move Out After Separation, Is the House Still a Matrimonial Home?

Many clients ask: "Does that mean if I move out, the house is no longer a matrimonial home?"

Please note the exact wording of the statute: "was at the time of separation ordinarily occupied"

The keyword is "at the time of separation"—as of the separation date, not after separation.

Whether you continue to live there after separation does not affect the determination of the matrimonial home. The residential status at the exact moment of separation "locks in" the identity of the matrimonial home. Moving out afterwards—whether by you or your spouse—will not alter this designation.

Why This Distinction Is Crucial in Practice

The matrimonial home holds a very special legal status under Ontario family law:

1 A matrimonial home cannot be sold or mortgaged unilaterally. Regardless of whose name is on the title, neither spouse can sell, lease, or mortgage the matrimonial home without the other's written consent. This protection remains effective even after separation.
2 Both spouses have a right of habitation. Even if the house is registered in only one spouse's name, the other legally retains the right to continue living there and cannot be forcibly evicted—unless there is a court order.
3 The "pre-marital asset deduction" rule does not apply to a matrimonial home. In net family property calculations, a party can typically deduct the value of assets brought into the marriage. However, the matrimonial home is an exception—even if the property was purchased by one spouse before marriage, its pre-marriage value generally cannot be deducted. This rule profoundly impacts many people.

Practical Advice

If you are experiencing marital distress or starting to consider separation, the following points deserve serious attention:

Every property in your name needs to be assessed based on its residential status on the separation date. Do not assume that because "it's my pre-marital house" or "it's a rental property," matrimonial home issues do not apply.
The timing and manner of separation can sometimes affect which properties are designated as matrimonial homes. This is a decision that requires professional legal advice rather than hasty action.
If you own multiple properties, including a cottage, vacation home, or a secondary residence used by both parties, be sure to inform your lawyer during your consultation without omission.

Conclusion

The legal definition of a matrimonial home is vastly different from our cultural intuition of a "bridal home." A single distinction can mean the gain or loss of hundreds of thousands of dollars in assets.

If you have questions about your property status or are facing the pressures of divorce property division, you are welcome to contact us for an initial consultation.

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The Matrimonial Home Isn’t Just “The House Bought at Marriage”—Ontario’s Most Common Misconception

The Matrimonial Home Is Not Just "The House Bought at Marriage"
— Ontario's Most Common Misconception Among Chinese Canadians

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