Questions about the Matrimonial Home

One of the most common questions I get is as follows:

“I (and my parents through a gift) plan to contribute more towards the family home than my fiancée. On your website it states the a prenup protects the matrimonial home, and in the comments you give an example of a clause which would provide credit for the down payment upon divorce?

The reason I ask is that other law firm websites I found states that “possession” of the family home means that the value of the home is calculated into the equalization of net family property when spouses separate, and a prenup can not protect against that”

Answer about the Matrimonial home

Your question touches on an important nuance in Ontario family law that often causes confusion.

You’re correct that there appears to be conflicting information about whether a prenuptial agreement can protect the matrimonial home. Let me clarify this for you:

The Matrimonial Home Under Ontario Law

Under the Family Law Act, the matrimonial home receives special treatment. While a prenup cannot prevent the matrimonial home from being considered a “matrimonial home” and the accompanying rights that go with that, it can address how the value of that home is treated when property is divided upon the breakdown of a relationship.

What a Prenup CAN Do:

A prenup can validly exempt the value of a matrimonial home from the equalization process, or provide credit for a down payment contribution. As the court noted in Martin v. Watts (2018 ONSC 2622) at paragraph 24:

“parties are not precluded from agreeing to exempt the value of the matrimonial home from the equalization process or from agreeing that the spouse who owned the house prior to the marriage will deduct its pre-marital value in the equalization process”

What a Prenup CANNOT Do:

A prenup cannot change the statutory definition of what constitutes a “matrimonial home” or eliminate the rights that come from being a matrimonial home.

What are these rights?

These are “possession, disposition, and encumbrance” of the matrimonial home. This essentially means that neither spouse is permitted to kick the other out of the matrimonial home, sell the matrimonial home without the other’s permission, or mortgage the matrimonial home without the other’s permission, regardless of the ownership of the matrimonial home.

Your Specific Situation:

In your case, a properly drafted prenup can absolutely include provisions that:

1. Recognize your larger contribution to the down payment;
2. Provide that in the event of separation, you would receive credit for this larger contribution before the remaining equity is divided; and
3. Clearly state that this down payment is excluded from equalization calculations

Important Drafting Considerations:

The agreement must use precise language that specifically addresses the value of the home in the equalization calculation, not just ownership. As seen in Knight v. Knight-Kerr (2021 ONCA 686), the court upheld an agreement where the wife received her original deposit of $45,000 “off the top” before the remaining profits were divided equally.

You’re Invited to Call or E-Mail!

If you’re considering a prenuptial agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at (800) 837-0460 or email us using our contact form here.