Question: I owned a house with my common law partner but my name is not on the title only my common law spouse. We have been living in the same house for more than 10 years and my common law partner decided to sell it.
Since I am not on the title do I have a say on the property? – Josie
Answer: In Ontario Family Law Act, R.S.O. 1990 under “matrimonial home” a spousal consent is needed in order for the property to be listed for sale.
It looks like you are considered living under a cohabiting arrangement or common law arrangement with your spouse so NO spousal consent is needed to sell the property. – seek independent legal advice
FLA states that the definition of spouse is “married couple” although a common law spouse may have been contributed financially towards the matrimonial home it doesn’t automatically guarantee an ownership. More information about COMMON LAW article www.commonlawrelationships.ca/ontario/
In order for non owner (married) spouse to sell the property on his/her own you need to file a motion. Either spouse can file a motion for interim relief and request that a judge decide whether a matrimonial home should be listed for sale, even if the other spouse does not want to sell it. The judge can also deal with other things like:
- who will get to sign the documents needed for the sale
- who will get to make decisions about listing and sale prices
- other sale details
- how the proceeds from the sale will be paid out over the short term and
- how leftover sale proceeds will be dealt with.
Listing Agreement Authority To Offer For Sale
When listing and selling a property, all registered owners need to sign the “Listing Agreement” and the “Agreement of Purchase and Sale” and all related documents. Most residential properties are owned by both spouses jointly. If both spouses are on title as owners of the property (any property, whether it be a matrimonial home or other property), both spouses are shown as owners and sellers throughout the transaction. A Realtor must have both spouses sign the listing agreement and agreement of purchase and sale and other related documentation, as the owners and sellers. It is a serious problem if not all the owners sign the listing and/or the agreement of purchase and sale and related documents.
If only one spouse is shown on title as the registered owner of a matrimonial home the owner-spouse would be shown as the seller throughout the transaction. However, the non-owner spouse will NEED to consent to the listing and the transaction and sign many items, including:
- the spousal consent section of the listing
- any amendments to the listing
- the agreement of purchase and sale and ancillary documents, such as the deed/transfer, etc.
- Both spouses also need to initial any changes to the APS in the event of counter offers.
If the property is a matrimonial home and only one spouse is on title as the owner and the other spouse will not/does not provide his/her consent to the listing and sale of the property, the seller’s lawyer will need to be consulted to determine whether:
- there has been a joint designation of another property as the matrimonial home, which has been registered and not cancelled;
- there is a separation agreement in place releasing the Part II rights of the non-owner spouse; or
- a court order to that effect has been or will need to be obtained.
A Realtor is trained to the following: If there is any doubt as to whether a property is a matrimonial home, assume that it is unless appropriate documentation under the Family Law Act or a court order states otherwise. If there is a dispute between spouses as to whether a property is a matrimonial home, the spouses may need to obtain a court order to determine whether it is and whether it requires consent in order for one spouse to sell or encumber it. If one spouse refuses to consent, a court order may need to be obtained in order to dispose of the property.
NOTE: I WILL HIGHLY RECOMMEND AND ADVICE YOU TO SEEK AN INDEPENDENT LEGAL ADVICE REGARDING “FAMILY LAW” MATTERS.