Can my estranged spouse keep coming into our house and taking things?

If you and your spouse were married, but you are not yet divorced and you do not have a separation agreement or divorce order, then the answer is yes.

Your spouse is allowed to keep coming into the house because it is a “matrimonial home.” The house or houses in which married spouses lived together when they separated are called “matrimonial homes.” Matrimonial homes are special in family law for several reasons. – there are some important financial considerations too, which are described in the video.) One way that matrimonial homes are special is that married spouses are each equally entitled to stay in them until they are divorced, or there is a court order or agreement stating otherwise. You are not allowed to block your estranged spouse from coming into a matrimonial home without the court’s permission. You cannot change the locks on a matrimonial home without your spouse’s consent or a court order. Both of you are allowed to stay in the home. 

If your spouse is causing problems in coming into the home, especially if those problems relate to the kids. You can ask the Superior Court of Justice to make an order giving you “exclusive possession” of the matrimonial home until you are divorced or have agreed otherwise in writing. There are very specific requirements you have to meet to get such an order, so you really do need to speak to a good family lawyer about doing this. Once you get an order for exclusive possession, you can change the locks and deny your spouse entrance to the home.

If your spouse is being harassing, or threatening, in coming around the home – to either you or the kids – then you may want to also get a restraining order. The court will make a restraining order to “keep the peace” until the case is finished or things otherwise settle down. The new terms for restraining orders are described on this page. These orders are also quite technical, so to get one, it is important to speak to a good family lawyer. 

With regard to taking things, you really need to settle the “property issues” between you and your spouse. After marriage, your assets and liabilities are divided in a legally set way, which is described in this podcast and on this page. However, until you have an agreement diving up your assets (including the house contents), there can be arguments about that. You and your spouse have until 6 years after your date of separation or 2 years after the day you are divorced to bring property equalization claims against each other. That is a long time to fight over who owns which table or chair. It is best to start working on getting a legally valid and enforceable separation agreement.

This sounds like a situation where your estranged spouse is being aggressive and unreasonable. You need to know your rights when dealing with such a person to make sure you do not give away more than you have to. This video described some common mistakes separating couples make. To find out more about your rights in separation, and how to avoid giving up too much, you should pick up a copy of this easy-to-understand berets-selling book on Ontario Family Law. 

However, to keep your estranged spouse in his place, and to make sure you are fully protected, it is best to meet with a good family lawyer who can apply the law to your specific situation to protect you. Toronto lawyer John Schuman is a Certified Specialist in Family Law. That means he has been recognized by the Law Society of Upper Canada as one of Ontario’s top Family Law/Divorce Lawyers. To reach John, either call the number above or use the form below. You can also use the form to comment on this page. 

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Comments on this page from the internet:

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

Good information on a very common issue we face regularly.

Linda Hammerschmid

NO should be the answer, and if a spouse leaves I presume it is because they do NOT want to be there so the party left should change the locks and instruct anyone living in the house not to allow entry–EVEN if it is your parent!

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

@Linda Hammerschmid: I would emphasize that what you are saying is what the law SHOULD be, and not what it actually is.

Linda Hammerschmid

Guess it depends on the jurisdiction in which you practice. I am in Montreal, Quebec Canada

Daniel Boiani

Barrister and Solicitor, Partner at Monaco Boiani De Marco

I noticed that and thought it was an interesting potential difference in the jurisdiction’s treatment of this issue.

Linda Hammerschmid

And that is the difference between future law and current law– jurisdictions. 
Advances in law start in one place and mutate to others. 
Always interesting to learn who is doing what.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

To comment on this article, or to contact John Schuman, please use the form below.

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