In New Brunswick, both married spouses have an equal right to possess the marital home. To keep the house permanently, you generally need to negotiate a buyout by refinancing the mortgage in your name alone, or obtain an Exclusive Possession order from the Court of King’s Bench.
Going through a separation is incredibly stressful, especially when deciding who gets to keep the marital home. In New Brunswick, this process involves careful negotiation and a clear understanding of provincial family laws.
Whether you reside in Moncton, Fredericton, or Saint John, knowing your legal rights is the first step toward achieving a fair and secure resolution for your family.
Understanding Your Rights to the Marital Home in New Brunswick
Generally, family law in New Brunswick dictates that both married spouses have an equal right to remain in the marital home. This statutory right applies regardless of whose name is actually listed on the property deed or the mortgage documents. 📍
Under the provincial Marital Property Act, the family home holds a special legal status. You cannot simply lock your spouse out or force them to leave without their consent or a formal court order. If you wish to stay in the home, you will need to either negotiate a financial buyout or seek an exclusive possession order from a local judge.
Step-by-Step Process to Keep the House in New Brunswick
Step 1: Gathering Financial Documents and Valuations
Before any decisions can be made, you must determine the fair market value of the property. Hiring a certified real estate appraiser in New Brunswick is highly recommended to ensure an unbiased valuation. 📊
You will also need to gather your most recent mortgage statements, property tax assessments, and utility bills. Having a clear picture of the home’s equity is critical before you propose a buyout to your spouse.
Step 2: Negotiating a Separation Agreement
Most applicants in this province choose to resolve the issue through a formal separation agreement rather than rushing to court. A separation agreement is a legally binding contract that outlines how you will handle the home, spousal support, and parenting time.
It is strongly advised to have a local law firm draft or review this agreement. Both spouses should receive independent legal advice to ensure the contract is fair and enforceable under New Brunswick law.
Step 3: Refinancing to Buy Out Your Partner
If your spouse agrees to leave, you will likely need to buy out their share of the home’s equity. This typically means applying for a new mortgage in your name alone to pay off the existing shared debt and give your spouse their financial share. 💰
You must qualify for this new mortgage based solely on your own income and credit score. A local mortgage broker can assist you in finding a lender willing to facilitate a spousal buyout program.
Step 4: Applying for an Exclusive Possession Order
If your spouse refuses to leave and the living situation becomes toxic or unsafe, you can file a formal motion at the Court of King’s Bench. An exclusive possession order legally grants one spouse the temporary right to live in the home while explicitly excluding the other.
Judges consider several factors before granting this order, including the best interests of any children, the financial position of both spouses, the availability of alternative accommodations, and any history of family violence.
Buyout vs. Exclusive Possession
| Feature | Spousal Buyout | Exclusive Possession Order |
|---|---|---|
| Permanence | Permanent solution. You become the sole owner. | Temporary solution until the divorce is finalized or property is divided. |
| Consent Required | Requires mutual agreement or a court order for property division. | Can be ordered by a judge even if the other spouse objects. |
| Financial Impact | Requires you to secure a new mortgage and pay out equity. | Does not transfer ownership; both parties may still be liable for the mortgage. |
How Much Does it Cost in New Brunswick?
The cost of keeping the marital home varies widely depending on whether the separation is amicable or highly contested. Common expenses include:
- Property Appraisal: Hiring a professional appraiser typically costs between $350 and $600 CAD.
- Separation Agreement: Lawyer fees for drafting a comprehensive agreement generally range from $1,500 to $3,500 CAD.
- Real Estate Lawyer Fees: Processing the title transfer and refinancing usually costs around $1,000 to $1,500 CAD.
- Court Applications: If you must apply for exclusive possession at the Court of King’s Bench, court filing fees are generally $75 CAD for a motion, but legal representation can add thousands to your final bill.
How Long Does the Process Take?
Negotiating a friendly buyout through a separation agreement generally takes 1 to 3 months. Once agreed, securing a new mortgage and transferring the title can add an additional 30 to 60 days. ⏱
However, if you need to litigate the matter and obtain an exclusive possession order from the Court of King’s Bench, the process may take 2 to 6 months or longer, depending on the court’s current schedule in your specific city.
Frequently Asked Questions (FAQ)
Can I legally change the locks on the house?
No. Unless you have obtained an exclusive possession order from the Court of King’s Bench, you cannot legally change the locks to lock out your married spouse, even if only your name is on the deed.
Who pays the mortgage after we separate?
Until a formal agreement is reached or the property is refinanced, both spouses whose names are on the mortgage remain legally responsible for the payments. Missed payments will negatively impact both of your credit scores.
What if only my spouse’s name is on the property deed?
Under New Brunswick’s Marital Property Act, the marital home is treated uniquely. Even if you are not on the deed, you generally have an equal right to stay in the home and an equal claim to its value during the marriage.
Do common-law partners have the same rights to the home?
No. In New Brunswick, common-law partners do not have the same automatic statutory rights to equal division of the family home as legally married spouses. If your name is not on the deed, keeping the home can be significantly more complicated, and you should consult a local lawyer.
Will moving out affect my rights to the property?
Moving out does not cause you to lose your financial share of the home’s equity. However, it may impact your ability to move back in later or affect parenting time arrangements, so it is best to speak with a law firm before vacating.
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