The topic of real estate often intersects with family law and, as not all family law lawyers practice real estate (or have a friend to call that does), this article strives to summarize some notable points.
Spousal Consent
Per section 18(1) of the Family Law Act, a Matrimonial Home is defined as 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.
For married couples, when a Matrimonial Home is listed for sale or a mortgage is being registered on the property, spousal consent is required, whether or not the spouse appears on title of the Home. In the event that such consent is not obtained, the real estate agent or the real estate lawyer will be unable to proceed with the transaction.
If the parties are not married and one party owns a property, the consent of the other party is not required to sell or mortgage the property.
Matrimonial Home Designations
When only one party appears on title of the Matrimonial Home, and the non-titled spouse is concerned that the titled spouse may try to act without obtaining the property consents listed above, the non-titled spouse can register a “Matrimonial Home designation” on title through the land registry system. This designation serves to notify potential purchasers and/or lenders that the transaction could be set aside if no spousal consent is obtained. A spouse can register such designation with the assistance of a real estate lawyer without notifying the titled spouse.
A Matrimonial Home designation can be removed either voluntarily by the person who registered or by order of the court. For so long as the designation exists on title, no transactions can proceed without the proper consent of the non-titled spouse.
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