- Both spouses have an equal right to possession of a matrimonial home, whoever is on title.
- A spouse generally cannot sell or mortgage a matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it.
- A transaction that breaks the consent rule may be set aside, so a properly completed transfer matters for the title.
Many people assume that if only their name is on title, they can sell or mortgage the family home on their own. In Ontario, that is often not the case. The Family Law Act gives a spouse who is not on title important rights in the home you live in together.
This article explains what counts as a matrimonial home, when a spouse's consent is needed, the main exceptions, and what can happen if the rules are ignored. It is general information, not advice for your situation.
What counts as a matrimonial home
Under section 18(1) of the Family Law Act, a matrimonial home is property in which a spouse has an interest and that the spouses ordinarily occupy as their family residence, or did occupy that way at the time of separation.
Under section 19(1), both spouses have an equal right to possession of a matrimonial home, no matter whose name is on title. Being the only registered owner does not remove your spouse's right to live there.
The consent rule for selling or mortgaging
Under section 21(1), a spouse may not dispose of or encumber (sell or mortgage) an interest in a matrimonial home unless one of the following applies:
- the other spouse joins in the transaction or consents to it
- the other spouse has released their rights in a separation agreement
- a court order authorizes the transaction
If a transaction breaks this rule, it may be set aside under section 23. That can put a buyer or lender in a difficult position, and it can cloud the title. A buyer, a lender and their lawyers will usually want to be satisfied that the spousal requirements were dealt with properly.
Exceptions and special situations
| Situation | What the rule says |
|---|---|
| Designated home | Consent is not needed for a property that both spouses have not designated as a matrimonial home, where a joint designation of another property is registered and not cancelled. |
| Spouse not on title | Their possession right is personal and ends when they stop being spouses, unless an agreement or order says otherwise. A court can order exclusive possession under section 24 regardless of ownership. |
| Common-law partners | The matrimonial home rules in Part II apply to spouses as defined in section 1(1), meaning married couples. |
| Joint tenancy with someone else | If a spouse dies owning a matrimonial home as a joint tenant with someone other than their spouse, such as an adult child, the joint tenancy is deemed severed immediately before death, so survivorship does not operate. |
Common-law couples are not legally required to split property acquired while living together, though a partner who contributed may have a claim and may need to go to court. If you are in a common-law relationship, how the property is held and what each person contributed can matter a great deal.
Sharing the value of the home if the relationship ends
On marriage breakdown, the full value of the family home must be shared even if one spouse owned it before the marriage or received it as a gift or inheritance, because section 4(2) of the Family Law Act excludes gifts and inheritances other than a matrimonial home.
Equalization claims must be made within six years of separation or two years of divorce, whichever comes first. Missing those limits can cost you a claim, so it is worth getting advice early.
What to do next
- Confirm whether the property is, or ever was, your family residence.
- Check whether you are married, since the matrimonial home rules apply to married spouses.
- Find out whether a joint designation of another property is registered.
- Review any separation agreement or court order for release of rights or possession terms.
- Do not sign a sale or mortgage until the spousal consent question is settled.
- Speak with a lawyer if your spouse is not on title, if you are separating, or if the home is held with another person.
A lawyer can confirm how these rules apply to your facts and make sure the transfer or mortgage is completed properly so the title holds up.
Frequently asked questions
Can I sell my home alone if I am the only owner on title?
Not necessarily. If it is a matrimonial home, you generally need your spouse to join in or consent, unless they have released their rights in a separation agreement or a court order authorizes the sale.
What happens if a matrimonial home is sold without consent?
A transaction that breaks the consent rule may be set aside under section 23 of the Family Law Act. Whether that actually happens depends on the facts, so legal advice is important.
Do common-law partners have the same rights to the home?
The matrimonial home rules in Part II apply to married couples. A common-law partner who contributed to the property may still have a claim, and may need to go to court.
Does my spouse's right to stay in the home last forever?
A spouse with no ownership interest has a personal possession right that ends when they stop being spouses, unless an agreement or order says otherwise. A court can also order exclusive possession under section 24 regardless of ownership.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario – Dividing property when a marriage or common law relationship ends — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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