Money & Legal
Separation Later in Life and the Family Home
Separating later in life: the family home, married vs common-law rules, options, pensions and getting help.
Separating after many years together is one of the hardest things a person can go through. Whether it was your decision, your partner’s, or one you came to together, you may be grieving the life you planned while also facing very practical questions about money, the house and where you will live next.
This guide walks through the home side of a later-life separation in plain language. It is general information only. Family law has its own rules, and every situation is different, so please speak with a family lawyer before you make decisions or sign anything.
The emotional side is real
A home you have shared for thirty or forty years holds more than furniture. It holds the garden you planted and the neighbours who became friends. It is normal to feel torn between wanting a fresh start and wanting to hold on.
Try not to make the biggest decisions in the first weeks, when feelings are rawest. Lean on people you trust, and consider speaking with a counsellor. Clear thinking now protects your finances and your well-being for the years ahead.
Married spouses: the matrimonial home has special status
In Ontario, the home a married couple lived in as a family is called the matrimonial home, and the law treats it differently from other property. According to Community Legal Education Ontario (CLEO):
- Both spouses have an equal right to stay in the home after separating, even if only one of them owns it or is named on the lease. This is a right to live there, not ownership itself.
- One spouse cannot sell or mortgage the matrimonial home without the other spouse’s written permission, or a court order.
- When property is divided, the full value of the matrimonial home is generally shared, even if one spouse owned it before the marriage. For most other property, only the increase in value during the marriage is shared.
There are also time limits for making a property claim. Ontario says the usual deadline for going to court over an equalization payment is six years from the day you separated or two years from the day your divorce is final, whichever comes first. Read more on Dividing property when a marriage or common law relationship ends and CLEO’s Property division: Married couples.
Common-law couples are treated differently
Many people are surprised to learn that these rules do not apply to couples who lived together without marrying. Ontario’s property-sharing rules for the matrimonial home are for married spouses. In general:
- Each common-law partner usually keeps what is in their own name. Only property you own together is divided.
- A common-law partner does not automatically have the right to stay in the home if it is not in their name, and the owner can sell or mortgage it without the other’s permission.
- A partner who contributed to a home owned by the other may be able to make a claim (sometimes called “unjust enrichment”), but these claims can be hard to prove.
If you are in a long common-law relationship, getting legal advice early matters even more. See CLEO’s Property division: Common-law couples and our guide to Joint Ownership.
Your options for the house
Most separating couples end up with one of a few choices. None is right for everyone.
- One keeps the home and buys out the other. This can keep stability, for example near grandchildren. Ask honestly whether you can afford the buyout, the upkeep and the carrying costs on one income or pension, and whether a lender would approve any new mortgage.
- Sell and divide the proceeds. Selling gives both of you a clean break and cash to start again, perhaps in a condo, a rental or a retirement residence. See Selling Your Home.
- Wait for a set period. Some couples agree to sell later, for instance in the spring market or after a health matter settles. Put any such agreement in writing with your lawyers.
A step-by-step approach
- Get your own legal advice. Each of you should have your own family lawyer. Ontario advises that each person have their own lawyer look over a separation agreement before signing.
- Gather the paperwork. Deed, mortgage statements, property tax bills, home insurance, and any records of who paid for what.
- Find out what the home is worth. A professional appraisal or an agent’s written market evaluation gives you both a shared starting point.
- Look at the whole financial picture. The house is usually one part of a bigger picture that includes pensions, savings and debts.
- Try to agree. Mediation can help you reach decisions together, usually at lower cost and with less stress than court.
- Put it in writing. Only act on the house once the agreement is signed, or a court has decided.
Pensions and retirement plans
At this stage of life, pensions and retirement savings are often worth as much as the house, sometimes more. Workplace pensions, RRSPs and RRIFs can all form part of the property division for married couples, and the rules for valuing and dividing them are detailed. Your lawyer and a financial advisor or accountant can explain how this affects you, including any tax consequences.
Canada Pension Plan (CPP) credits earned while you lived together can also be split between former spouses or common-law partners, if certain conditions are met. The split is not automatic; one of you must apply. See the Government of Canada page Splitting Canada Pension Plan credits, and our guides to Money Matters and Taxes and Benefits.
Mediation and legal help
Ontario offers free family mediation at family courts on the day you are scheduled to be in court, and lower-cost off-site mediation with fees on a sliding scale based on income. Family Law Information Centres in family courthouses provide information about separation and the court process. See Family justice services.
If you need a lawyer, the Law Society of Ontario’s Law Society Referral Service can connect you with one for a free initial consultation of up to 30 minutes. This is also a good moment to update your will and powers of attorney, since many people named their spouse years ago. See Power of Attorney and Legal and Estate Matters.
How a neutral agent helps when you both must agree
When a home is sold during a separation, both owners or spouses usually need to approve the listing price, the offers and the closing date. An agent who works fairly with both of you, communicates with both in writing, and follows your lawyers’ instructions can lower the temperature. That can mean sending every update to both of you at once and keeping both lawyers informed.
Frequently asked questions
Can my spouse sell the house without me?
For a married couple’s matrimonial home in Ontario, generally no. Written permission from the other spouse, or a court order, is required. For common-law couples the rules are different. Speak with a lawyer about your situation.
Do I have to move out?
Married spouses have an equal right to stay in the matrimonial home after separating until that changes by agreement, court order or sale. Do not move out without legal advice first.
Is it better to keep the house or sell?
It depends on your finances, health and plans. See Should You Stay or Move?
How Irina can help
Irina understands that a sale during a separation needs patience, discretion and fairness to both people. She is happy to offer a calm, no-pressure conversation, in English or Russian, about what the home might be worth and what selling would involve, and to work alongside your lawyers. Contact her whenever you are ready.
Related guides: Renting After You Sell · Buying After 60 · Timing the Sale