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Can My Spouse Sell Our House Without My Consent?
The simple answer is no; as long as your spouse is honest with their lawyer, they cannot sell your house without your consent. For more details, read below.
What if We Are Both on Title?
If you and your spouse are both registered owners, you both must sign off on any title transfers, mortgages, purchases, or sales. As co-owners, your lawyer must involve both of you and cannot exclude one spouse from the transaction. If both of you are registered on the title, it’s clear: everyone knows that all registered owners must sign off on any transactions.
What if I Am Not on Title?
If you are not registered on title and you both live or will live primarily at the home, you need spousal consent for all mortgages, sales, purchases, and title transfers.
Both spouses must agree with plans for the property and participate in all transactions. While they may not have to sign as much paperwork, you cannot hide details from a spouse who is off title. They still need to meet with a lawyer and complete the same ID verifications. In essence, the off-title spouse will be just as involved as the registered owner throughout the process.
Exceptions to the Rule
A few exceptions exist to the general requirement for spousal consent. The top exceptions are as follows:
- Primary Residence vs. Other Properties: This only applies to your primary residence. Rentals, secondary homes, vacation homes etc., do not require spousal consent;
- Separation Agreement Provisions: Both spouses sign a Separation Agreement that sets out that they can sell, mortgage or transfer the house; and .
- Court Orders: A Court Order that requires the house to be sold, mortgaged, or transferred, and specifies the spouse’s signature is not needed.
Prepare thoroughly. If these circumstances apply to you, you might need to provide documents or other proof that you meet one of the exceptions mentioned above.
Why Does My Spouse Need to Consent?
The Ontario Family Law Act gives spouses equal rights to the matrimonial home. It protects the right to live and stay in the matrimonial home, even if a spouse isn’t on title. Since both spouses have an equal right to live in the matrimonial home, you need to inform your spouse about any plans for the home. They must also agree with those plans.
In the same way that you cannot sell something you do not own or borrow money against something you do not own, you cannot mortgage, sell, buy or transfer the matrimonial home without your spouse’s consent since they have an interest in the home, even if it’s an unregistered interest.
Do We Need to Each Have Our Own Lawyers if We Aren’t Both on Title?
Not necessarily, but your lender or lawyer may require it. Each lawyer will have to decide if they feel comfortable representing both spouses in any transaction. Even if your lawyer feels comfortable with it, your lender may still require proof that your spouse has received Independent Legal Advice (commonly referred to as “ILA”).
ILA means you have a separate lawyer for your spouse who will review the documents and explain the situation. That lawyer will advise your spouse in their best interest and ensure no one pressures them to agree to anything against their will. Once the ILA lawyer signs off on the transaction with your spouse, your lawyer can then complete the registration.
What Lawyers Can’t Protect Against
Although we require every spouse to sign, we cannot obtain consent if we are unaware of the spouse’s existence. This is where real estate agents, brokers etc. can help let us know if they have seen otherwise.
However, if an individual lies to their lawyer about the presence of a spouse and no one comes forward to correct that lie, a lawyer will have no way of knowing that someone else needed to consent to the transaction. If you have concerns that your spouse may do this, please reach out to a lawyer about your options.
Contact Us
If you have any questions about whether your spouse needs to sign for consent, please contact us. Our experienced real estate group is ready to help you navigate property transactions.
The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.
