If a property is a matrimonial home, does the non-owner spouse sign both the spousal consent and sign as one of the sellers?
When is spousal consent required?
What is a matrimonial home?
Following are some facts to keep in mind when representing a couple selling their matrimonial home. This is provided for information purposes only and is not intended as legal advice.
Section 18 (1) of the Ontario Family Law Act, 1990, defines matrimonial home as “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.” One or both spouses may designate property owned by one or both of them as a matrimonial home (s. 20 (1)). If one spouse owns the matrimonial home, designated as such, that spouse cannot sell the home without the written consent of the other, non-owning spouse. This is referred to as spousal consent.
If you are representing a couple selling their property, you must first determine if the property is designated as a matrimonial home. If it is, regardless of who holds title, you would need the consent of the non-owning spouse. If it is a non-owning spouse, that spouse would sign under “Spousal Consent” on OREA Form 100, Agreement of Purchase and Sale, not sign as one of the sellers.
Of course, the issue can be much more complex. For example, one spouse has released all rights to the matrimonial home, referred to in Section 21 (2) of the Act as a spouse who “disposes of or encumbers an interest in a matrimonial home.”
Sounds complicated? It is. The key points to remember are:
• if it’s a matrimonial home, as defined by the Family Law Act, you need written consent from the spouse even if that spouse does not hold title to the property
• seek legal advice