Can My Spouse Sell or Mortgage the House Without My Consent in Manitoba?

You may be worried that your spouse, who is the only name on the title, could sell or mortgage the family home without telling you. In Manitoba, a law called The Homesteads Act gives you protection even if you never signed the purchase papers.

This article explains who is protected, what counts as a homestead, how to register a notice, and what happens if you agree to give up your rights. It is general information, and the details of your situation are worth confirming with a lawyer.

This article covers the law of Manitoba.

The basic rule: written consent is needed

Under The Homesteads Act, an owner may not dispose of the homestead during the owner's lifetime unless the spouse or common-law partner consents in writing in the prescribed form. That consent is registered in the land titles office.

The Act applies to all married persons and to persons in common-law relationships, and the rights exist whether or not the non-owner is on title. So being left off the title does not, by itself, take away your protection.

If you and your spouse have separated, remember that separated spouses remain legally married until a divorce. How that affects your homestead rights in a particular case depends on the facts, so it is worth confirming with a lawyer.

What counts as a homestead

A homestead includes a city, town or village residence occupied by the owner and the owner's spouse or common-law partner as their home. Rural residences and condominium units are covered under separate clauses of the Act.

Because the definition has several parts, whether your particular home qualifies can depend on where it is and how it is held. A lawyer can confirm this for you.

Who is a common-law partner for homestead purposes

For The Homesteads Act, a common-law partner is a person who registered under The Vital Statistics Act or who cohabited in a conjugal relationship for at least three years.

This differs from The Family Law Act, which also counts a couple who lived together at least one year and are the parents of a child. If you are common-law, do not assume the shorter period applies to homestead rights.

Registering a common-law relationship with the Vital Statistics Agency is voluntary. If you are unsure whether you meet a definition, a lawyer can look at your dates and your history.

Protecting yourself and releasing your rights

• Register a homestead notice: a spouse or common-law partner with homestead rights may register a notice in the land titles office, and registration of a disposition is blocked until the notice is vacated or discharged.
• Release your rights: a spouse may release rights in writing in the prescribed form for valuable consideration. After that, the land ceases to be that spouse's homestead.
• On the owner's death: a surviving spouse or common-law partner with homestead rights is entitled to a life estate in the homestead, subject to certain exceptions in the Act.

Think carefully before signing any release. Once you release your rights, the land stops being your homestead, so get legal advice first.

Homestead rights are not the same as sharing the home's value

Homestead rights control whether the home can be sold or mortgaged. They are separate from how the home's value is divided. A family asset includes an asset used for shelter, such as the family home. Each spouse and common-law partner has the right, on application, to an accounting and an equalization of assets, and the combined value is divided into two equal shares unless the court orders otherwise.

For family assets, a court may alter equal sharing only if equalization would be grossly unfair or unconscionable.

Property claims are made to the Court of King's Bench. An application may not be made more than 60 days after the divorce becomes absolute or takes effect, although the court may extend that in specified circumstances. For common-law partners, the period is 60 days from registration of the dissolution if registered, or three years from when they began to live separate and apart if unregistered.

What to do next

• Find out who is on title and whether the home is in a city, town, village, rural area or a condominium.
• Gather documents such as the title, mortgage statements and anything you were asked to sign.
• Do not sign a consent or release until you understand it.
• Ask a lawyer whether registering a homestead notice makes sense for you.
• If you are common-law, note when you registered or began living together.

Frequently asked questions