Separation: Your Rights If You Own Your Home

When couples separate, property is often a major concern. Who keeps the house or condo? Do you need your ex’s permission to sell your home? The legal rules are different depending on who owns the home, and whether you’re married, in a civil union, parental union or common-law relationship (de facto union).

A man opens the door of his home with a bag in hand.

This article in short:

If you and your ex co-own your home, you both have property rights and must decide together what to do with it.
If only one person owns the home, the other person generally doesn’t have a right to stay there, and can’t prevent the sale of the home, with exceptions.
If you’re married, in a civil union or parental union, special protections apply even if only one person owns the home.

To know who can stay in the family home, and what you can do with it after a separation, you must first know whether you were married, in a civil union, parental union or common-law relationship. The rules change depending on the legal status of your relationship. If you’re not sure, consult a lawyer or notary.

If you’re in a common-law relationship, check if you’ve signed a cohabitation agreement that says what you’ll do with your home if you separate.

Important!
To exercise your rights, you must respect some deadlines. Generally, you have three years to go to court. But if you’re in a parental union, you must act within 120 days of the end of your union to benefit from special protections. After that date, you could lose rights.

You and your ex co-own the home

If you and your ex co-own your home, you both have a right to stay there, even after you separate. Neither of you can have the other leave without their consent or a court judgement.

After a breakup, you must decide together what to do with your home. For example, you can agree that one person will stay there with the kids until you sell it or find another solution.

Here are some possibilities:

You sell the home and share the money from the sale.
One of you buys the other’s share in the property.
You continue being co-owners.

If one person continues living in the home, the other can sometimes ask for money to compensate for not being able to use it. You can file this request with the court during separation or divorce proceedings.

For more information on co-ownership during a separation or divorce visit the JuridiQC website (French only). You can also contact an Info Justice centre.

One person owns the home

Common-law couples don’t get automatic protections

Even if you’ve lived together for many years, whoever’s name is on the deed owns the home.

Generally, if you’re not the owner, you don’t have a right to stay in the home and you can’t stop your ex from selling it. But the rules can be different if you have a cohabitation agreement or other agreement that says otherwise.

Good to know!
If you’re not an owner, but you contributed money to your home, for example, by paying for renovations or other big expenses, you can ask the court to order compensation for what is called “unjust enrichment” (French only). You can also contact an Info Justice centre for more information.

Couples who are married, in a parental union or civil union get protections over their family residence

If you’re married, in a parental union or civil union, your home can be considered your family residence. This can prevent the person who owns the home from selling it, renting it or, in some cases, mortgaging it, without the other person’s consent or court authorization.

What to do if you can’t agree

If discussions about the family home are too difficult or conflictual, you have two options.

Family mediation

In family mediation, a neutral person helps you and your ex come to an agreement. It’s often faster, less expensive and less conflictual than going to court.

In Quebec, separating parents can often get free hours of family mediation.

Going to court

If mediation isn’t enough, or the situation is too tense, you can go to court. A court can do these things:

force someone to agree to put the home up for sale,
order someone to leave the home temporarily until the separation is settled,
order someone to continue contributing to payments related to the home.

If both you and your ex want the other person to leave the home, the court will consider who has custody of the children when making its decision. If you have shared custody, or no children, the court will decide based on your situation.