Entitlement to the family home

Abstract

The family home is usually the most important asset of the family because it is where the whole unit resides. However, even though the family resides in the property, this does not mean that both parties in a couple own a share of the property. The fact that the house is the matrimonial home does not mean that it is automatically included in the community of acquests. In fact when the home has not been acquired together before the marriage, has been donated to one of the spouses or bought by one spouse alone before the marriage, the home would not belong to both spouses together but to that one spouse. Claims for ownership from the spouses usually arise when the marriage or relationship does not work out and separation proceedings ensue. In such proceedings, the court is to decide who shall continue to reside in the matrimonial home and retain possession of the home. The research shows how in certain cases, even when the home is only owned by one of the spouses the court may use its discretion in order to grant a right of possession to the other spouse especially if the court thinks that this would be in the good interest of the family's children. This research looks at the similarities between the family home in marriage, civil unions and cohabitations. The research also investigates the notion of having a family home to be held by one of the spouses in a constructive trust of which both spouses are beneficiaries. This gives common law courts the very limited possibility of awarding a share of the family home to the spouse which does not have ownership rights over the property for the purpose of equity and fairness.