What is it?
A matrimonial home is the home that married spouses live in together as their family residence. Section 18 of Ontario’s Family Law Act describes it as a property in which a person has an interest and that the person and their spouse ordinarily occupy as their family residence. Whose name is on title does not matter.
There can be more than one. A cottage the family regularly uses can also be a matrimonial home. If the spouses have separated, the home they lived in at the time of separation is the matrimonial home.
“Spouse” here means a married person. Section 1 of the Act defines spouses as two persons who are married to each other. Partners who live together without being married (common-law partners) are not spouses under this part of the Act (Part II).
Why does it matter when you buy or sell?
Because of section 21 of the Family Law Act. One spouse cannot sell the matrimonial home or put a mortgage on it (a loan secured by the home) unless the other spouse signs the document or consents to the deal. This is true even when only the husband, or only the wife, is on title.
Only three things can replace consent: the other spouse gave up their rights in a separation agreement, a court authorized the deal, or the spouses registered a designation naming a different property as their matrimonial home.
If a spouse sells or mortgages the home without consent, the other spouse can ask the court to set the deal aside (section 21(2)). A buyer who paid for the home, acted in good faith and did not know it was a matrimonial home is protected. That is why lawyers always check.
Section 19 of the Act gives both spouses an “equal right to possession” of the matrimonial home. A spouse who is not on title still has the right to live there. This is not ownership, and it ends when they stop being spouses unless a separation agreement or court order says otherwise.
How does it show up in the contract?
The standard Ontario purchase agreement (OREA Form 100) normally has a Family Law Act clause. Either the seller promises that spousal consent is not needed for this home, or the spouse signs the spousal consent line in the agreement. Check the exact wording, clause number and signature line in the document you sign.
The transfer (the registered document that moves ownership) also contains Family Law Act statements. Under section 21(3), a seller’s statement that they are not a spouse, that the property is not the family residence, or that the spouse released their rights in a separation agreement counts as sufficient proof, unless the buyer had notice otherwise.
What the lawyers check, step by step
- The seller’s lawyer asks whether the seller is married and whether the spouse lives in the home.
- If the spouse is not on title, the spouse signs the spousal consent in the purchase agreement and in the transfer. A lender asks for the same consent when a new mortgage is registered.
- If the spouses are separated or divorcing, the lawyer checks the separation agreement or court order for a release or authorization.
- The buyer’s lawyer checks during the title search that the Family Law Act statements in the transfer are complete, and recommends title insurance as well.
Married spouses vs common-law partners
| Married spouse | Common-law partner | |
|---|---|---|
| A “spouse” under Part II of the Act | Yes (section 1: two persons married to each other) | No |
| Consent needed to sell or mortgage (s. 21) | Yes | Not under section 21 |
| Equal right to possession (s. 19) | Yes | Not under section 19 |
| Ownership if not on title? | A right to consent and to live there, not ownership | No ownership without being on title |
Common-law partners sometimes claim rights in a home in other legal ways. If you both put money into a home, talk to a lawyer early, whatever the title says.
Mortgage default, death and separation
- If a lender moves to sell the home (for example, by power of sale): under section 22, the spouse who is not on title gets the same notice as the owner spouse and the same right to pay the arrears and keep the home (the right of redemption).
- If the owner spouse dies: a spouse who is not on title but was living in the home can stay there rent-free for 60 days after the death (section 26).
- If the owner spouse held the home in joint tenancy with someone other than their spouse and dies, section 26(1) treats the joint tenancy as severed just before death. The share does not pass automatically to the other joint tenant.
- If the spouses are separated, the home they lived in at separation is still a matrimonial home. Selling it needs the spouse’s consent, a separation agreement or a court order.
What to watch out for
- A home one person bought before the marriage becomes a matrimonial home once the spouses live there together. “I bought it, so it is mine to sell” does not apply.
- A deal made without consent can be set aside later. That is why lawyers usually make sure there is consent (or something that replaces it, such as a separation agreement or a court order) before closing. Talk to your spouse first.
- Under section 20, spouses can register a designation of one home as their matrimonial home. Other homes (such as a cottage) then stop being matrimonial homes. Do this with a lawyer.
- A buyer cannot know the seller’s family situation. The lawyer’s checks and title insurance are your safeguards.
- This entry covers consent when buying and selling only. How the value of the home is divided on divorce (equalization) is a separate set of rules for a family lawyer.
Example
A house in Richmond Hill is registered in the husband’s name only. The couple has lived there together for 10 years. The husband decides to sell.
Because the house is a matrimonial home, the wife signs the spousal consent in the purchase agreement and consents again in the transfer on closing. Without her signature the buyer’s lawyer would normally not have closed, and if the deal had closed anyway, the wife could have asked the court to set it aside.
What the law and official sources say
Quotes are copied word for word. The "In plain words" lines are our explanation, not an official translation.
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 is their matrimonial home.In plain wordsA home the spouses ordinarily live in as their family residence (or lived in when they separated) is a matrimonial home, even if only one of them has an interest in it.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
“spouse” means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.In plain wordsIn this Act a spouse is a married person. Unmarried common-law partners are not spouses for the matrimonial home rules in Part II.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
Both spouses have an equal right to possession of a matrimonial home.In plain wordsBoth spouses have the same right to live in the matrimonial home, whether or not they are on title.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
No spouse shall dispose of or encumber an interest in a matrimonial home unless, (a) the other spouse joins in the instrument or consents to the transaction; (b) the other spouse has released all rights under this Part by a separation agreement; (c) a court order has authorized the transaction or has released the property from the application of this Part; …In plain wordsA spouse cannot sell or mortgage the matrimonial home unless the other spouse signs or consents, has released their rights in a separation agreement, or a court has authorized it.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.In plain wordsA sale or mortgage made without consent can be cancelled by the court, except against a buyer or lender who paid for it, acted in good faith and did not know the home was a matrimonial home.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
Despite clauses 19 (2) (a) and (b) (termination of spouse’s right of possession), a spouse who has no interest in a matrimonial home but is occupying it at the time of the other spouse’s death, whether under an order for exclusive possession or otherwise, is entitled to retain possession against the spouse’s estate, rent free, for sixty days after the spouse’s death.In plain wordsA spouse who is not on title but lives in the home can stay there rent-free for 60 days after the owner spouse dies.
Source: ontario.ca/laws/statute/90f03 · checked Oct 30, 2026
Common questions
The house is in my husband’s name only. Do I have to sign when he sells?
Yes, if you live there together as your family home. Under section 21 of the Family Law Act the spouse who is not on title must consent. You normally sign the spousal consent line in the purchase agreement and in the transfer.
Does a common-law partner have to consent?
No. A spouse under Part II of the Act is a married person, so the section 21 consent rule does not apply to common-law partners. If you both put money into the home, a partner may still have other legal claims, so talk to a lawyer.
We are separated. Can I sell the home in my name on my own?
The home you lived in at the time of separation is still a matrimonial home. You need your spouse’s consent, a separation agreement in which they released their rights, or a court order. Check with a family lawyer first.
Can a cottage or a condo be a matrimonial home?
Yes. Any property the spouses ordinarily use as a family residence can qualify, and there can be more than one. If the spouses register a designation of one home, the others stop being matrimonial homes (section 20).
What should a buyer check?
This is hard to check yourself. Your lawyer reviews the Family Law Act statements and the spousal consent in the transfer, and title insurance covers surprises. If the spousal consent line in the agreement is blank, ask your lawyer.
Guides that use this term
Sources checked
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — ss. 1, 18–22, 26 · checked Oct 30, 2026