When Do I Need Spousal Consent?

The question of whether spousal consent is required needs to be asked whenever there is a residential real estate transaction, whether it is a purchase, sale or new mortgage. If the owner is married, separated or divorced spousal consent may be necessary.

This requirement arises from the Ontario Family Law Act, which provides that before a matrimonial home can be transferred or encumbered, consent must be provided by both spouses even where one spouse is not on title. A matrimonial home is the property where a married couple ordinarily resides.

When a married couple separates or even divorces the parties' matrimonial home still can only be 
transferred or refinanced with both parties’ consent; unless, the couple has dealt with the matrimonial home in a separation agreement, court order, or sold the property. Due to this, a property may still be a matrimonial home months or even years after a separation.

If it is determined that spousal consent is necessary, both spouses need to sign the listing agreement, the Agreement of Purchase and Sale, and the lawyer’s closing documents.

Spousal consent is not needed where the owner is in a common-law relationship or the property is a rental.

In order to prevent issues from arising part way through the transaction, it is always a good idea to 
disclose your relationship status up front to your realtor, mortgage broker and lawyer.

Heather Geertsma
Lawyer with Johnson McMaster