When you are selling or mortgaging a property, you should advise your lawyer if the subject property is your matrimonial home and/or of your current spousal status and the use of the property (e.g. rental or personal use). If the property is subject to spousal rights, even if the spouse is not on title as a registered owner, obtaining spousal consent is mandatory in order to close the transaction. If the titled spouse attempts to sell or mortgage matrimonial home without the non-titled spouse’s consent, the purchaser or the lender will end up obtaining title or registered interest subject to that spouse’s legal interest which will give rise to future claims and litigation.
Despite some obscurity surrounding this topic and a false impression that the spousal right may also apply to unmarried but cohabiting couples, Real Estate Law and Family Law concurrent grounds do not go beyond any formal marriage obligations.
Real Estate Law does not exist in a vacuum and certain rights and obligations under one area of law can trigger corresponding rights and obligations under different areas of law. Section 1 of Family Law Act (the “Act”) defines “spouse” as either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. <…>”. This so called “Section 1 definition” applies to the Matrimonial Home & Property Division sections of the Act (being the sections directly affecting Real Estate Law). Please note that it clearly defines spouse as a married spouse.
However, in section 29 of the Act, the persons who are not married to each other and have cohabited <…> are being included to the above definition of the “spouse”. The major confusion comes from the fact that Section 29 was created for the purpose of Part III of the ACT ONLY (being the part that deals with support obligations and NOT real property).
As such, when you are selling or mortgaging matrimonial home, and signature of a non-titled spouse is required, only married spouses need to sign it. No so called “common-law” marriage will ever form any interest in a matrimonial home under the existing Act.
The content provided is for informational purposes only and in not legal advice. Do not rely on this content to make legal or business decisions. Always seek professional legal advice relevant to your situation.
