When Spousal Consent Is Required (And When It’s Not)

Reading Time: 4 minutes

By now, most Realtors are familiar with the Spousal Consent section on the signing page of the Agreement of Purchase and Sale.

It looks like this:

And in most cases, you probably know when it needs to be completed.

Spousal consent should be signed when:

• The seller is legally married
• Their spouse is not on title
• The property is a matrimonial home

It doesn’t apply to common-law relationships. And it’s not needed when both spouses are already listed as owners.

But here’s the part that confuses some people:

There can be more than one matrimonial home.

A matrimonial home isn’t the same as a principal residence. A person can only have one principal residence for tax purposes.

But when it comes to family law, spouses can have multiple properties that qualify as matrimonial homes—so long as they’re used as family residences.

Notice the word "every":

Family Law Act—Matrimonial Home
18(1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. 

Think about a couple who splits time between their house in Toronto and a family cottage in Muskoka.

If both are used as living spaces for the family, both could be considered matrimonial homes. And if only one spouse is on title, both would require spousal consent to sell.

So why does this matter?

Because under Ontario’s Family Law Act, spouses have equal possessory rights to a matrimonial home—even if they’re not on title.

If you facilitate a sale without proper spousal consent, the transaction can be challenged, delayed, or even unwound.

And the last thing you want is to be caught in the middle of a family law dispute over a property you helped sell.

The best way to protect the deal—and your client—is to get ahead of the issue.

Next time you’re listing a property, ask the right questions:

• Confirm Marital Status: Is the seller is legally married?
• Determine Property Use: Has the property has been used as a family residence?
• Check Title Ownership: Is only one spouse on title?
  *You can check this one with a $35 Parcel Register

If the answer is yes to all three, spousal consent is likely needed.