- A married spouse generally cannot sell or mortgage the matrimonial home unless the other spouse joins in or consents, has released their rights, or a court order allows it.
- A transaction that breaks this rule may be set aside.
- Common-law partners are outside the matrimonial home rules in Part II, though they may have other claims.
You may be the only name on title to the home you live in with your spouse. It is natural to assume that means you can sell it or borrow against it on your own. In Ontario, that is often not the case.
The Family Law Act gives spouses rights in the family home that do not depend on whose name is on title. This article explains the main rules, the exceptions, and what happens on separation and on tax. Your facts matter, so a lawyer can confirm how this applies to you.
What counts as a matrimonial home
A matrimonial home is property a spouse has an interest in that the spouses ordinarily occupy as their family residence, or did at the time they separated. Whether a particular property fits that description depends on how you and your spouse actually use it, so it is worth confirming with a lawyer.
Both spouses have an equal right to possession of the matrimonial home, whoever is on title. Being left off the deed does not remove that right while the spouses remain married.
The consent rule for selling or mortgaging
No spouse may dispose of or encumber an interest in a matrimonial home, which means selling or mortgaging it, 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 s. 23 of the Family Law Act. That can leave a buyer or lender in a difficult position, so how this applies to a particular sale or mortgage depends on the facts and is worth confirming with a lawyer.
Limits and exceptions
- Designated homes: consent is not needed for a property that the spouses have not designated as a matrimonial home, where a joint designation of another property is registered and has not been cancelled.
- Common-law partners: the matrimonial home rules in Part II apply to spouses as defined in s. 1(1), meaning married couples. Common-law couples are not legally required to split property acquired while living together, but a partner who contributed may have a claim and may need to go to court.
- Spouse not on title: that spouse's right to possession is personal and ends when they stop being spouses, unless an agreement or order says otherwise. A court can still order exclusive possession under s. 24 regardless of ownership.
Whether a home is a matrimonial home, or whether a designation is in place, can turn on the facts. It is worth confirming before you sign anything.
Separation, sharing value and deadlines
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. Gifts and inheritances are otherwise excluded from sharing, but the Act carves out the matrimonial home from that exclusion.
Equalization claims must be made within six years of separation or two years of divorce, whichever comes first.
For tax, a transfer of land between spouses or former spouses is exempt from Ontario land transfer tax where it is made under a written separation agreement or a court order, or where the only consideration is assuming a registered mortgage. Here, spouses include married spouses and some unmarried couples, as defined in s. 29 of the Family Law Act. Toronto charges its own municipal land transfer tax, which is separate from the provincial rules above.
What to do next
- Confirm whether you are married, as the matrimonial home rules apply to married spouses.
- Identify whether the property is where you ordinarily live as a family, or whether a joint designation of another home is registered.
- Before signing a sale or mortgage, make sure your spouse joins in or consents, or that they have released their rights in a separation agreement.
- If your spouse will not agree, ask a lawyer whether a court order is an option.
- Note the separation and divorce dates, because equalization deadlines run from them.
- Ask a lawyer about land transfer tax before transferring title between spouses.
Frequently asked questions
Can I mortgage the house if only my name is on title?
Not safely without your spouse's involvement if it is a matrimonial home. No spouse may mortgage it unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it.
What happens if I sell without my spouse's consent?
The transaction may be set aside under s. 23 of the Family Law Act. Whether that applies depends on the facts, such as whether the home was a matrimonial home or a joint designation of another property was registered.
Do these rules apply to common-law partners?
The matrimonial home rules in Part II apply to married couples. Common-law partners are not legally required to split property acquired while living together, but a partner who contributed may have a claim and may need to go to court.
Does a home I owned before marriage still get shared?
Generally yes. 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. Equalization claims must be made within six years of separation or two years of divorce, whichever comes first.
Sources
- Ontario Ministry of Finance – Transfers of Land Between Spouses — ontario.ca
- 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.
This is a real estate question
Start a file online — flat, published fees, reviewed by a licensed lawyer before a dollar is owed.