When you’re buying or selling a home in Ontario, one detail that often catches people off guard is spousal consent. Even if only one spouse is on title, the other spouse may still have legal rights in the property – and those rights can affect whether your deal is allowed to close.

At Rabideau Law, we see spousal consent questions come up frequently in residential real estate transactions. Understanding the basics can help you avoid last-minute surprises and delays on closing day.

What is a “matrimonial home” in Ontario?

Most of the rules around spousal consent centre on the concept of the matrimonial home.

Under Ontario’s Family Law Act, a matrimonial home is any property in which a person has an interest and that is, or was at the time of separation, ordinarily occupied by the person and their spouse as their family residence. In simpler terms, it’s the home where married spouses live together as a family.

A few key points:

• Married spouses only: These rights apply to legally married spouses. They do not automatically extend to common-law partners, no matter how long they have lived together.
• More than one home can qualify: In some situations, a couple can have more than one matrimonial home (for example, a city home and a cottage), if both are ordinarily used as family residences.
• Location matters: The property must be located in Ontario for it to be treated as a matrimonial home under Ontario’s legislation.

Because of the special protections given to the matrimonial home, one spouse cannot unilaterally sell or mortgage it without the other spouse’s consent.

When is spousal consent required in a sale?

If you are selling a matrimonial home, the non-titled spouse must consent to the transaction.

This is true even if:

• Only one spouse is registered on title
• The other spouse did not contribute financially to the purchase
• The couple is separated but not yet divorced

Ontario law is clear that a spouse cannot unilaterally sell a matrimonial home. If spousal consent is not obtained, the sale may not proceed, and the deal can collapse – even after an Agreement of Purchase and Sale has been signed.

In practice, this usually means:

• The non-owner spouse signs a spousal consent confirming their agreement to the sale and their willingness to sign all necessary documents; and
• The spouse may also sign other forms used by real estate professionals, such as a consent clause in the listing agreement or Agreement of Purchase and Sale.

When is spousal consent required in a mortgage or refinance?

The same protection applies when a matrimonial home is being mortgaged or refinanced.

A spouse cannot mortgage, refinance, or otherwise encumber a matrimonial home without the other spouse’s consent, even if that spouse is not on title. Lenders and real estate lawyers are very careful about this. Typically, the non-titled spouse will be asked to sign:

• A spousal consent to the mortgage or refinance; and/or
• A declaration about their spousal status and their relationship to the property.

If spousal consent is refused or cannot be obtained, the lender may refuse to advance funds, and the transaction may not close.

What about a purchase – is spousal consent needed then?

When you are purchasing a property, spousal consent is generally not required for the purchase itself. You can buy a property in your name alone, even if you are married.

However, if the property will become your matrimonial home, spousal rights will attach once you and your spouse begin using it as your family residence, whether or not your spouse is on title.

This means the non‑titled spouse automatically gains important rights—even if they never contributed to the purchase, never signed the mortgage, and are not registered as an owner.

These rights include:

• The right to live in the home: A non‑titled spouse cannot be forced out or locked out without a court order, even if they are not an owner.
• The right to be consulted on major decisions: The titled spouse cannot sell, mortgage, or otherwise dispose of the home without the non‑titled spouse’s written consent.
• Equal possession rights: Both spouses have an equal right to possess and occupy the home, regardless of financial contribution.

In mortgage-financed purchases, your spouse may still be asked to sign:

• A spousal status declaration (for example, confirming whether you are married and whether the property will be a matrimonial home); and/or
• A spousal consent to the mortgage, recognizing the lender’s rights against the property.

This helps lenders ensure their security is enforceable if the property is, or becomes, a matrimonial home.

Do common-law partners need to give consent?

This is an area where many clients are surprised.

Under the Family Law Act, matrimonial home protections apply only to married spouses. Common-law partners do not have the same statutory rights to require consent for a sale or mortgage of the home, even if they have lived together for many years.

That said, common-law partners may still have:

• Equitable or ownership claims in the property based on contributions, agreements, or resulting trust; or
• Rights arising out of cohabitation agreements or other contracts.

These situations can become complex quickly. If you’re in a common-law relationship and buying, selling, or refinancing a home, it’s especially important to get legal advice tailored to your specific circumstances.

What if spouses are separated or divorcing?

Separation and divorce do not automatically eliminate the protections around the matrimonial home.

If spouses are separated but not divorced, the property may still be considered a matrimonial home, and spousal consent is generally still required for a sale or mortgage unless:

• The court has made an order regarding possession or sale of the home; or
• There is a separation agreement that clearly addresses what will happen to the property and how it may be sold or refinanced.

Even after divorce, questions about rights to the former matrimonial home can arise depending on timing, occupancy, and any existing agreements or orders. Legal advice is critical in these circumstances.

What happens if spousal consent is overlooked?

If spousal consent is required and not obtained:

• The transaction may be invalid or unenforceable, and the sale may not close as planned.
• The non-consenting spouse may apply to the court to set aside a transaction.
• Buyers, sellers, lenders, and even realtors can end up in costly disputes or litigation.

This is why lawyers, lenders, and real estate professionals are so careful about confirming spousal status and obtaining the necessary consents early in the process.

How Rabideau Law can help

Spousal consent issues don’t have to be stressful, but they do need to be handled correctly.

Our real estate team at Rabideau Law can:

• Review your situation and determine whether the property is a matrimonial home
• Advise you on when spousal consent is required for your sale, purchase, or refinance
• Prepare and explain all necessary spousal declarations and consents
• Coordinate with your realtor, lender, and other professionals to help your transaction proceed smoothly

Whether you’re selling a long-time family home, buying your first property, or refinancing after a separation, we can guide you through the legal requirements and protect your interests at every step.

If you’re unsure whether spousal consent is needed in your upcoming transaction, contact Rabideau Law before you sign – a brief conversation now can prevent much bigger problems later.