When Selling a Family Home, Both Spouses Must Consent
A recent Ontario court decision reinforces a key rule under the Family Law Act: a matrimonial home cannot be sold without the consent of both spouses. The case shows how failing to obtain spousal consent can void a real estate deal entirely.
Case Overview
The purchasers agreed to buy a Kitchener property for $2.84 million and paid a $150,000 deposit. The Agreement of Purchase and Sale (APS) was unconditional, but the sale never closed. Later, the buyers learned that the vendor’s spouse had not provided written consent to the sale — a legal requirement under Ontario’s Family Law Act when the property is a matrimonial home.
The buyers asked the court to have their deposit returned, arguing that the contract was invalid from the outset. Justice Hebner agreed. Because the vendor’s spouse never consented, the APS was void, and the buyers were entitled to the return of their deposit plus $10,000 in costs.
Why Spousal Consent Is Essential
Under section 21(1) of the Family Law Act, neither spouse can sell, transfer, or mortgage an interest in the matrimonial home without the other’s consent or a court order. This rule protects each spouse’s equal right to occupy the home, even if only one spouse is on title.
Failure to comply means the entire agreement can be invalid — even if the other party acted in good faith. As this case demonstrates, the absence of spousal consent can halt a deal, trigger refund obligations, and cause costly litigation.
Common Mistakes to Avoid
- Assuming consent isn’t required because one spouse owns the property
- Failing to disclose marital status when signing an APS
- Not consulting a lawyer before listing or signing the sale documents
- Overlooking separation status—consent is still required until the home is formally divided or a court order says otherwise
Key Takeaway
If you’re selling or transferring a matrimonial home, ensure all required spousal consents are in place before signing anything. Otherwise, you risk voiding the deal and facing legal consequences.
Need Help with Spousal Consent or Property Division?
Before you sell or refinance a family home, speak with an experienced Ontario family lawyer. Proper legal advice protects your rights and ensures compliance with the Family Law Act.
📞 Contact IQBAL LAW today to discuss your situation and avoid costly mistakes when selling a matrimonial home.
Frequently Asked Questions
Matrimonial Homes in Ontario
What is a matrimonial home in Ontario?
A matrimonial home is any property ordinarily occupied by spouses as their family residence. Under Ontario’s Family Law Act, both spouses have equal rights to possess the matrimonial home, even if only one name is on the title.
Can one spouse sell a matrimonial home without the other’s consent?
No. The Family Law Act (section 21) prohibits selling, mortgaging, or transferring a matrimonial home without the written consent of both spouses or a court order. If consent is missing, the sale may be declared void.
What happens if spousal consent is missing during a home sale?
If spousal consent isn’t obtained, the Agreement of Purchase and Sale can be voided. As seen in this case, the court may order the deposit returned to the purchaser and require the seller to pay costs.
Does separation eliminate the need for spousal consent?
Not automatically. Until a separation agreement or court order specifically addresses property rights, both spouses retain an interest in the matrimonial home and must consent to its sale.
How can I protect myself before selling a matrimonial home?
Consult a family lawyer before listing or signing any agreements. A lawyer will confirm spousal consent requirements, ensure proper documentation, and prevent costly disputes or void transactions.