What do I need to know/do if I’m representing a couple selling their matrimonial home?
The question is simple, and answer not so much. Here is what you must determine:
Is the property, in fact, a ‘matrimonial home’ as defined in law? 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 the property is a matrimonial home, you must obtain written consent of the non-owning spouse, regardless of who holds title. The non-owning spouse would sign under “Spousal Consent” of the agreement of purchase as sale (OREA Standard Form 100). The non-owning spouse does not sign as one of the seller.
You must also determine if a spouse has released all rights to the matrimonial home. Section 21 (2) of the Act refers to this as a spouse who “disposes of or encumbers an interest in a matrimonial home.” Releasing rights to a matrimonial home requires that certain conditions, as outlined in the Act, are met.
This is a complicated issue and the information provided is not intended as legal advice. Therefore, if you are representing a couple selling their matrimonial home, consider seeking legal advice.
The Matrimonial Home Podcast
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