Exclusive Possession of the Matrimonial Home

"Can I change the locks on my home?"
No.

"Then how do I get my spouse out of the house?"
You need to obtain a court order for exclusive possession of the matrimonial home.

"What is exclusive possession of the matrimonial home?"
When a couple is married, regardless of in whose name the house is, both spouses have an equal right to stay in the home. However, a court can take away this right from one spouse by forcing him or her to leave the home, and by granting the other spouse what is known as “exclusive possession of the matrimonial home.”

"When does a court give exclusive possession of the matrimonial home?"
If a couple can no longer manage to live together. However, courts are very hesitant to kick someone out of their home, so things must be pretty bad at the home – for instance, in cases of domestic violence. The fact that you and your spouse can’t stand each other is not enough.

"So even though we’ve separated, my spouse and I may need to live together for a while?"
Yes, possibly. This is something you need to discuss with your lawyer.

"How does a court decide who gets exclusive possession of the matrimonial home?"
A court will consider a number of factors in deciding this. The most important one is whether there has been domestic violence. If there has been no violence, the court will consider how difficult it is for the spouses to remain together, each spouses’ financial circumstances, and the availability of alternative accommodation (for instance, with family members). If there are children, the court will consider what arrangement is in the children’s best interests.

Factors the court considers in granting exclusive possession:.
(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) In determining the best interests of a child, the court shall consider,

[What is best for the children is a major consideration in determining whether to grant a spouse exclusive possession of the matrimonial home.]

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained.

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