Special Treatment of the Matrimonial Home

Special Treatment of the Matrimonial HomeIf a spouse enters into a marriage with a matrimonial home and that home is the same one in which the spouses reside at the date of separation, that spouse cannot deduct the premarital value of the home. As a result, the full value of the home is included in their net family property. This is in stark contrast to the credit they receive for the value of other property owned at the date of marriage.
Additionally, a spouse cannot exclude the value of the matrimonial home if it was acquired by funds from other traceable excluded property, such as a gift or inheritance, even after the marriage. [Clewlow v Clewlow (2004)]
The rationale underlying this ‘equal’ division of the matrimonial home is the partnership principle. However, in situations where the non-owner spouse experiences a significant monetary gain from the increase in value of the owner spouse’s property in a marriage of a duration of less than 5 years, the owner spouse may have a claim under section 5(6) of the Family Law Act, for an unequal division of property in light of the unconscionability of the equal division of property. [Harris v Stuart Harris (2005)].