When is Spousal Consent Required?

Posted on: Tuesday, May 14th, 2013

Spousal consent is required when you are listing a matrimonial home.

Sounds easy enough, however, you need to know what is considered a matrimonial home to ensure you have the consent of both spouses for every step of this transaction.

The definition for the matrimonial home comes from the Family Law Act, R.S.O. 1990, c. F.3 (“FLA Act”). A matrimonial home is “every property… ordinarily occupied by a person and his or her spouse as their family residence”.

In order to understand this definition, it is necessary to understand that a ‘spouse’ for these purposes only includes married couples (both same and opposite sex). Common-law couples are not subject to the same legislative provisions.

Also, because the definition includes the wording “every property”, it is possible for there to be more than one matrimonial home, as long as it is used as a family residence. It is interesting to note that who holds the actual title on these matrimonial homes is irrelevant, as the spouse simply just has to occupy the home as a place of residence for the family.

The FLA Act provides spouses with an “equal right” to possess the matrimonial home, while also prohibiting one spouse from disposing of the home, or encumbering it without the consent of the other spouse. If this condition is breached, and one spouse tries to dispose of, or encumber a matrimonial home without consent, the transaction may be set aside in certain circumstances.

One circumstance where the sale may not be set aside is if the buyer acquired the home for good value, in good faith, and without any notice or disclosure that the home was considered a matrimonial home for which spousal consent was required.

Information that could constitute notice that it was in fact a matrimonial home would include information obtained by the buyer’s solicitor when conducting the title search which could indicate that a spouse exists. In that case some sort of spousal consent would be required, and if none is obtained, the validity of the transaction may be put at risk.

Overall, it is important for you as a real estate agent to ensure that you familiarize yourself with who owns the property and determine whether or not a spouse exists. If so, you should ensure that you get both co-owners to execute the Agreement of Purchase and Sale, as to avoid any potential conflicts down the road which may lead to the transaction being set aside. I advise agents when in doubt get both spouses to sign.

This article was prompted by an agent sending me the following email:

I’ve heard contrasting opinions around spousal consent. Here is the scenario:
- matrimonial home
- only 1 party is on title
- 1 signs the Listing Agreement under Seller while the other signs the Spousal Consent line

Does the non-titled spouse need to sign all documents outside of the listing agreement? The APS? Amendments/Price Reductions???

I am sure after confirming that spousal consent was required for the listing you all understand that all dealings require both spouses to consent. Why would you only be required to obtain consent to the listing agreement and initial asking price and not any amendments or price reductions if both spouses have equal rights to the property?

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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