Under The Family Law Act, and in the event of separation, a matrimonial home is the home that spouses ordinarily occupied as their family residence.
With a matrimonial home,
1. It does not matter whether a spouse is or is not registered on title.
2. It also does not matter whether a spouse brought the home into the marriage with them.
Each spouse has an equal right to possession of the home, as well as the right to an equal share or 50% of the equity on sale.
The spouse legally owning the home is not entitled to sell or encumber it without the written consent of his or her spouse. The consenting spouse will need to obtain independent legal advice regarding the nature and implications of granting the consent.
When both spouses are on title, both spouses are required to sign the Listing and Agreement of Purchase and Sale.
When only one spouse is on title, the other spouse has to sign the consent on the Listing and The Agreement.
The Listing Agreement states that "the Seller warrants that spousal consent in not necessary" unless the Seller's spouse has signed the consent provided in the listing form.
Where the Consent Signature is Required, both the Listing and The Purchase Agreement state that the spouse of the Seller consents to the listing and disposition of the property and agrees to sign all necessary documents.
What if the spouse refuses to sign consent?
Refusing to sign the consent, it may require the other spouse to obtain a court order to have the property sold.
What if the spouse on title wants to keep the home?
If only one spouse is on title to the house, then that person is entitled to keep the house (because it's in their name), but they must pay the other party 50% of the value of that house on date of separation.
If not done so already, we advise the sellers to discuss the sale of the home with their respective lawyers.
If they have a separation agreement, both parties are usually agreeable to signing. With no separation agreement, we have found that, subject to legal advice, they might agree to sell the house and place the sale proceeds in a lawyer's trust account until they reach an agreement.
Independent legal advice is critical.