Can I Sell the House Without My Spouse's Consent in NL?

You may be the only name on the title, or the mortgage may be yours alone. Now you are thinking about selling or borrowing against the house, and you wonder whether your spouse has to agree or sign.

In Newfoundland and Labrador, the Family Law Act treats the home a couple lives in differently from other property. This article explains how the Act describes the matrimonial home, how it connects to property division, and what to confirm before you act.

This article covers the law of Newfoundland and Labrador.

How the Family Law Act treats the matrimonial home

The Act defines the matrimonial home as the dwelling occupied by the spouses and owned by either or both of them. That means a home owned by only one spouse can still be a matrimonial home.

Each spouse has the same right of use, possession and management of the matrimonial home. On application, a court can give one spouse exclusive possession.

The Act uses the terms matrimonial home, matrimonial assets and business assets. It does not use the phrase family assets.

Does being the only owner on title settle it?

Not by itself. Because the Act gives both spouses equal rights in the home whichever of them owns it, title is only one part of the picture.

Whether a particular sale or mortgage needs your spouse's signature or consent depends on the specific provisions of the Act and on your facts, such as how the home is owned and whether you are still living in it together. This is something a lawyer should confirm before you sign an agreement of purchase and sale or a mortgage. A buyer's lawyer or a lender may also ask questions about your marital status.

Selling the home and dividing property

Either spouse is entitled to apply to a court to have the matrimonial assets divided in equal shares, so a sale does not on its own settle how the value is shared. Matrimonial assets include all real and personal property acquired by either or both spouses during the marriage, and the Act uses the term "matrimonial assets", not "family assets". The rules apply even to marriages that predate July 1, 1980.

Some property is left out. Gifts, inheritances, trusts or settlements received by one spouse from someone other than the other spouse are excluded, as are business assets and property acquired after separation. A spouse who contributed work, money or money's worth to the other spouse's business asset may still apply for compensation or a share.

Equal division is not always the result. A court can divide unequally where equal shares would be grossly unjust or unconscionable, looking at factors such as the length of the marriage, each spouse's contributions to the family's welfare and dissipation of assets. Moving or spending sale proceeds can therefore become part of the dispute.

• Time limit: an application to divide matrimonial assets cannot be brought more than 2 years after the marriage is terminated by divorce or nullity, or 6 years after separation with no reasonable prospect of resuming cohabitation, or 1 year after the first spouse's death.
• A spouse who contributed work, money or money's worth to the other spouse's business asset may apply for compensation or a share.

Agreements and unmarried partners

A separation agreement can settle how the home and other property are handled. It is unenforceable unless it is in writing, signed by the parties and witnessed. A signed agreement on a matter the Act also covers generally prevails over the Act's default rules.

A court may set aside an agreement if a party failed to disclose significant assets, debts or other liabilities, or did not understand the nature or consequences of the contract. Full financial disclosure protects the agreement.

If you are unmarried, the picture can differ. The Act defines spouse to include married persons, and certain persons in a void marriage entered in good faith, while common-law partners are covered separately under the definition of partner. Whether the matrimonial home rules reach you depends on your situation, so confirm this with a lawyer.

What to do next

• Pause before signing a listing, an agreement of purchase and sale or a mortgage until you have legal advice.
• Gather the deed, mortgage statements, and records of when you married, moved in and separated.
• List what was gifted or inherited and what was acquired after separation, since those may be treated differently.
• Note the time limits that could apply to a property application.
• Ask a lawyer whether your spouse's signature or consent is needed for your specific sale or mortgage.
• If you reach an agreement, put it in writing, signed and witnessed, with full financial disclosure.

Frequently asked questions