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Summary: A matrimonial home is any property a married couple ordinarily occupies as their family residence. Under Ontario's Family Law Act, one spouse cannot sell or mortgage it without the other spouse's consent, even if only one name is on title.
Most people learn about matrimonial-home rules at the worst possible moment: mid-sale, when the lawyer asks the spouse who is not on title to sign a consent. The rule is straightforward once you see it, and it shapes who has to sign before a deal can close.
What is a matrimonial home in Ontario?
A matrimonial home is any property in which a married spouse has an interest and that the couple ordinarily occupies as their family residence. The definition comes from section 18 of the Family Law Act (FLA) — Ontario's statute governing married spouses' property rights.
A few features surprise people. A couple can have more than one matrimonial home at the same time, so a regularly used cottage can qualify alongside the city house. It does not matter whose name is on title. And the status attaches to how the property is used, not to any registration or label.
Do both spouses have to consent to sell or refinance?
Yes. Under section 21 of the Family Law Act, a spouse cannot sell (dispose of) or mortgage (encumber) an interest in a matrimonial home unless the other spouse consents. This holds even when the other spouse is not an owner and is nowhere on title.
The reason is possession, not ownership. Section 19 gives both spouses an equal right to possess the matrimonial home for the length of the marriage. Selling or refinancing affects that right, so the non-title spouse's consent is required to complete the transaction.
How does spousal consent work at closing?
Your lawyer handles the consent as part of the standard closing steps. On a sale it appears on the transfer; on a refinance the lender requires it on the charge. The usual sequence:
Identify the matrimonial home. Your lawyer confirms whether the property is or was ordinarily occupied as the family residence during the marriage.
Confirm who is on title. If a spouse is missing from title, the lawyer flags that their consent will still be needed.
Obtain written spousal consent. The non-title spouse signs a consent on the transfer of title (sale) or on the charge (refinance).
Arrange independent legal advice if needed. Where the spouses' interests diverge, the consenting spouse may get independent legal advice (ILA) — separate advice from another lawyer — before signing.
Register the transfer or charge. With consent in place, the deal closes and the document registers.
Do the rules apply to common-law couples?
No. The Family Law Act's matrimonial-home protections apply only to married spouses. Common-law partners do not have an automatic right of possession or a consent requirement, regardless of how long they have lived together.
Married spouses | Common-law partners | |
Equal right to possession | Yes, during the marriage | No automatic right |
Consent needed to sell or mortgage | Yes, even if not on title | Only owners on title sign |
Source of the right | Family Law Act, Part II | Ownership on title |
If you are common-law and want both partners protected, the protection has to come from being on title or from a cohabitation agreement, not from the matrimonial-home rules.
What happens if a home is sold without the required consent?
A sale or mortgage made without the required spousal consent can be set aside by a court, though the Family Law Act protects a buyer or lender who acted in good faith without notice of the marriage or the home's status. In practice, missing consent is caught before closing, which is exactly why it is checked. Consent is not needed when:
The other spouse has already consented in writing on the transfer or charge.
A separation agreement or court order releases the spouse's rights or authorizes the dealing.
A designation under the Act removes the property's matrimonial-home status in the required way.
Frequently asked questions
My spouse is not on title. Do they still have to sign?
Yes. If the property is a matrimonial home, the non-title spouse must consent to a sale or mortgage under section 21 of the Family Law Act. Their right comes from possession during the marriage, not from ownership.
Can we have two matrimonial homes?
Yes. A couple can have more than one matrimonial home at once. A cottage or second property the family ordinarily uses as a residence can qualify alongside the primary home, and each may need spousal consent to sell or mortgage.
Do common-law partners have matrimonial-home rights?
No. The matrimonial-home rules apply only to married spouses. Common-law partners rely on title ownership or a cohabitation agreement for protection, not on the Family Law Act's home provisions.
Does spousal consent mean my spouse co-owns the home?
No. Signing a consent confirms the spouse agrees to the sale or mortgage. It does not transfer ownership or add them to title, and it does not by itself give them a share of the proceeds.
What if we are separated?
A separation agreement or court order can release a spouse's matrimonial-home rights or authorize a sale. Without one, the consent requirement generally still applies, so tell your lawyer early if you are separated.
About the author
Joel Fox is a co-founder and COO at Ownright. He helps run the firm's day-to-day work on Ontario residential closings, refinances, and sales, and writes regularly to demystify the parts of a transaction that most homeowners only encounter once or twice in their lives.
At Ownright, we focus entirely on Ontario residential real estate law. We help homeowners with purchase closings, refinancing, and sales, and we sort out who needs to sign before a deal can close. If you are selling or refinancing and are unsure whether spousal consent applies, it helps to talk to a real estate lawyer early. You can start your closing online or get in touch with any questions.
Legal references: Family Law Act, R.S.O. 1990, c. F.3, ss. 18, 19, 21.
Important note: This article is not legal advice. No one should act, or refrain from acting, based solely on the information in this post or any linked materials without first seeking appropriate legal or professional advice.
