Family Home and Farm
One of the most important family assets is the family home. This is any property used as a family residence. For example, it may be a house, apartment, trailer or condominium.
What are the special protections for the family home?
The Homesteads Act of Manitoba gives special protection to the family home. Where the home is owned by one spouse or common-law partner only, the other spouse or partner must consent in writing before it can be sold or mortgaged.
If the owner spouse or common-law partner dies, the non-owning spouse is entitled to continue living in the family home for the rest of his or her life, even if the owner’s will leaves the home to someone else. If there is a mortgage on the home, and the deceased home owner’s Will does not specifically address the issue or earmark funds to pay for the mortgage out of the estate, it is best to consult a lawyer to assist you in determining who may be responsible for paying the mortgage.
Who can have special rights to be in the family home?
Under The Homesteads Act, only one spouse or common-law partner at a time can have these special rights in the family home. If the homeowner brings a second or subsequent spouse or common-law partner to live in the home, that spouse or partner does not acquire homestead rights until the rights of the first spouse or common-law partner have been properly dealt with.
To qualify as common-law partners under The Homesteads Act, a couple must have either registered their relationship with the Vital Statistics Agency, or they must have cohabited in a conjugal relationship for at least three years. If the spouses or common-law partners have been living separate and apart for at least six months, or a court has declared the non-owning spouse or partner to be mentally disordered, the court may allow the transaction to take place without the consent of that spouse or partner. In such a case, the court may also attach conditions to the transaction to protect the non-owning spouse or common-law partner.
Do these right also apply to the family farm?
The special protection consent given to the family home under The Homesteads Act also applies to the family farm. This legislation applies not only to the farm dwelling, but also up to 320 acres of land.
Are there additional laws for property on First Nation reserves?
There is also federal legislation, the Family Homes on Reserves and Matrimonial Interests or Rights Act, which addresses the rights of married spouses and common-law partners in relation to a division of the value of a family home and other matrimonial real property situated on a reserve.
This federal law came into force on December 16, 2014. It sets out provisional federal rules which apply to First Nation communities in Manitoba, unless a First Nation has passed their own matrimonial real property laws.