Can My Spouse Stop Me From Selling the Home in Manitoba?

Selling a home during or after a breakup is stressful, especially if your spouse is not on title and you are not sure what they can do. People often worry that a spouse can simply block a sale, or that they can sell without telling anyone.

This article explains how Manitoba law treats the family home, what rights each partner has, and which court orders are separate. Whether your spouse's signature or consent is needed for a particular sale depends on the facts, and a lawyer should confirm that before you list.

This article covers the law of Manitoba.

Being off title does not end the discussion

Under The Family Property Act, a family asset is an asset owned by one or both spouses or common-law partners and used for shelter or transportation, or for household, educational, recreational, social or aesthetic purposes. It includes a family home. A family home is property in which a spouse or common-law partner has an interest and which is or was their family residence.

So a home registered only in your name can still be a family asset. Who is on title is not the only question.

If the property is mainly used for non-residential purposes, only the part reasonably needed to use and enjoy the residence counts as the family home. That can matter if part of the property is used for something other than living in it, so the details of how the property is used are worth discussing with a lawyer.

What the Family Property Act gives each partner

Each spouse or common-law partner has the right, on application, to an accounting and, subject to s. 14, equalization. The total is generally divided into two equal shares. The Act does not itself require the home to be sold.

In practice, this means the Act is mainly about dividing value. It is not a rule that says one partner can never sell. Even so, selling without addressing the other partner's claims can lead to disputes, so get advice first.

For family assets, conduct is not considered unless it amounts to dissipation.

When a court looks at whether to change the equal division of family assets, it considers extraordinary financial or other circumstances, or the extraordinary nature or value of the assets. Whether anything like that applies to your situation depends on the facts, and a lawyer can help you understand how a court might view it.

Staying in the home is a separate question

If your spouse wants to remain in the home, that is dealt with differently. Exclusive occupation of the family home is a separate order under Part 5, s. 80 of The Family Law Act. A court order of that kind is the sort of thing that could affect a planned sale, so ask a lawyer whether one has been applied for or made.

The Family Law Act treats common-law partners as those cohabiting in a conjugal relationship for at least three years, or one year if they are together the parents of a child. Under The Family Property Act, a common-law partner is someone who registered under s. 13.1 of The Vital Statistics Act or lived in a conjugal relationship, unmarried, for at least three years.

Time limits to watch

• Spouses generally must apply for an accounting within 60 days after the divorce takes effect or a nullity decree is completed.
• Common-law partners must apply within 60 days after a registered dissolution, or, if unregistered, within three years after beginning to live separate and apart.
• The court may extend these periods.

How a completed sale affects a claim for an accounting depends on your situation, so it is worth confirming with a lawyer before you close rather than assuming the matter is finished.

The starting point for each time limit differs depending on whether you were married or living together as common-law partners, so keep clear records of the dates of your marriage, any registration, and your separation. A lawyer can confirm which deadline applies to you.

What to do next

• Gather your title documents, mortgage statements and any separation or cohabitation agreement.
• Write down when you married or began living together, and when you separated.
• Check whether any court application or order about the home exists.
• Ask a lawyer whether your spouse's signature or consent is needed for your sale.
• Do not list or accept an offer until you know your obligations.

Frequently asked questions