Written by: Dina Nikseresht
Under Ontario’s Family Law Act, there is a requirement that consent must be provided by both spouses where matrimonial property is being sold, even if one spouse is not on title. A matrimonial home is a home that is occupied by a person and his or her spouse as their family residence. Property that does not meet the definition of matrimonial home does not require spousal consent to be sold or encumbered if the spouse is not on title.
Can You Refinance a Matrimonial Home Without Spousal Consent?
No. Just as with selling, a spouse cannot refinance or otherwise encumber a matrimonial home without the consent of their spouse. Lenders and real estate lawyers typically require the non-titled spouse to provide spousal consent before proceeding with the refinance or new mortgage.
How Is Spousal Consent Obtained?
Typically, where spousal consent is required, real estate agents will have the consenting spouse sign both the listing agreement and the Agreement of Purchase and Sale. The real estate lawyer representing the seller would also require that the non-titled consenting spouse sign a document consenting to the transfer or encumbrance of the property. In some circumstances the non-titled spouse may be required to obtain Independent Legal Advice (ILA) to confirm that the consent is informed and voluntary.
Do I need Consent from My Common-Law Partner?
Common-law partners do not have the same rights to matrimonial property as married spouses. If a common-law partner is not on title, their consent is not needed for a sale or mortgage. However, they may still have a claim for contribution or equitable entitlement if they made financial or other contributions towards the property during the relationship.
What if Spouses Are Separated?
Even after separation, a married spouse who is not on title must still provide consent to sell or mortgage a former matrimonial home, unless they have formally released their rights in a separation agreement. Until such a release is made, the property remains subject to the consent requirement.
What Other Circumstances Permit the Sale of a Matrimonial Home Without Consent?
There are two other circumstances where matrimonial property can be sold or encumbered without spousal consent:
- Where a court order has authorized the transaction; or
- Where the property is not designated by both spouses as a matrimonial home, and another property has been designated as a matrimonial home by both spouses and registered on title. Spouses can apply for a designation of a matrimonial home by filing a designation with the Land Registry Office.
If you are considering selling or refinancing property that may qualify as a matrimonial home, it is important to seek legal advice before proceeding. The consequences of failing to obtain required consent can include delays, unenforceable transactions, or court challenges.
