- A spouse generally cannot sell or mortgage a matrimonial home unless one of four situations in the Family Law Act applies.
- A sale made without the required consent can be set aside, unless the current holder bought for value, in good faith and without notice.
- If the other spouse cannot be found, cannot consent or is unreasonably refusing, a court may authorize the sale.
You may want to sell a home that is, or used to be, your family residence, but your spouse will not sign or you cannot reach them. Many people assume that if the home is only in their name, they can sell it alone. In Ontario, that is often not the case.
This article explains what makes a property a matrimonial home, the ways a sale can properly go ahead, what can happen if a sale goes ahead without consent, and when a court can step in. It is general information, not advice on your situation.
What makes a property a matrimonial home
Under the Family Law Act, a property is a matrimonial home if a spouse has an interest in it and it is or was ordinarily occupied by the spouses as their family residence. Both spouses have an equal right to possession of it.
This means the name on title is not the whole story. Your spouse may have rights in the home even if they are not an owner. Separation does not end spouse status for these rules. So a home you both lived in as a family may still be covered after you have separated.
The four ways a sale can go ahead
A spouse may not sell or mortgage an interest in a matrimonial home unless one of the following applies:
- The other spouse joins in the sale or consents to it.
- The other spouse has released their rights in a separation agreement.
- A court order authorizes the sale.
- Another property has been registered as the matrimonial home by both spouses.
The rule applies to mortgages as well as sales, so it can matter if you plan to borrow against the home before listing it.
What can happen to a sale made without consent
A sale made without the required consent can be set aside on an application under section 23 of the Family Law Act. That is a serious risk for you as seller, and for the buyer.
There is an exception. The sale is not set aside if the current holder of the property bought it for value, in good faith, and without notice that the property was a matrimonial home. Whether that exception helps will depend on the facts, so it is not something to rely on when planning a sale.
When a court can authorize the sale
If you cannot get consent, you may be able to ask a court. Under section 23, a court may authorize the sale or mortgage of the matrimonial home if the spouse whose consent is needed:
- cannot be found
- is not capable of consenting
- is unreasonably withholding consent
Whether a spouse's refusal counts as unreasonable depends on the circumstances of your situation, so it is worth confirming with a lawyer how it might apply to you.
Unmarried partners and co-owners who are not spouses
The matrimonial home rules in Part II of the Family Law Act use the section 1(1) definition of spouse, which covers married persons, including void or voidable marriages. The wider definition that includes unmarried cohabitants applies only to Part III, which deals with support. As a result, the section 21 consent rule does not protect unmarried partners.
That does not mean an unmarried partner has no rights. They may have other claims, such as through ownership on title, and a lawyer can explain what applies.
Co-owners who are not spouses rely on the Partition Act instead. All joint tenants, tenants in common and coparceners may be compelled to partition or sell the land. Any person interested in land in Ontario, or the guardian of a minor entitled to immediate possession, may bring an action or application for partition or sale. There is an exception for inherited land: where land is held by will or intestacy, no partition proceeding may be started until one year after the death. An appeal from any order under that Act goes to the Divisional Court.
What to do before you list
- Confirm whether the home is, or was, your family residence, and whether you are legally married.
- Check whether you have a separation agreement that releases your spouse's rights.
- If your spouse is willing, arrange for them to join in or consent to the sale.
- If you cannot reach them or they refuse, speak to a family or real estate lawyer about asking the court for authorization before you list.
- Tell your agent and lawyer about any possible matrimonial home issue early, so the sale is not put at risk.
Sorting this out before listing is far easier than trying to repair a sale afterwards.
Frequently asked questions
Can I sell the home if it is only in my name?
Not necessarily. If it is a matrimonial home, both spouses have an equal right to possession even when only one is on title. You generally need one of the four situations in section 21(1) to apply.
Does separation change the rules?
No. Separation does not end spouse status for these rules, and a property can be a matrimonial home if it was ordinarily occupied as the family residence. You still need consent, a release, a court order or another registered matrimonial home.
What if my spouse cannot be found?
A court may authorize the sale if the spouse whose consent is needed cannot be found, is not capable of consenting, or is unreasonably withholding consent. A lawyer can explain how to make that request.
Do these rules protect my common-law partner?
The section 21 consent rule does not protect unmarried partners, because Part II uses the definition of spouse that covers married persons. Other rights may exist, so it is worth getting legal advice.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Partition Act, R.S.O. 1990, c. P.4 (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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