This is the Spousal Consent paragraph:
“SPOUSAL CONSENT: The undersigned spouse of the Seller hereby consents to the listing of the Property herein pursuant to the provisions of the Family Law Act, R.S.O. 1990 and hereby agrees to execute all necessary or incidental documents to further any transaction provided for herein.”
Review
Set out below and marked in bold and italics are those words that are inserted by me to assist in the review. They are not set out in the clause itself. Let’s look at that paragraph in a little more detail:
SPOUSAL CONSENT:
The undersigned spouse of the Seller
Consent to Listing
hereby consents to the listing of the Property herein
pursuant to the provisions of the Family Law Act, R.S.O. 1990 and
Execute All Documents
hereby agrees to execute all necessary or incidental documents
Any Transaction
to further any transaction provided for herein.
COMMENT
This is a very broad statement. The spouse signs this consent and they not only agree to this “listing”, but to sign any Offers, Agreements, Transfer/Deeds, Directions etc.
You would think that it would say “acceptable to them”. But, that’s not what it says. That issue is specifically avoided. So, if the Seller agrees to accept an Offer, whatever it may be, then, the Spouse agrees to go along and execute the Spousal Consent as it appears later in the transaction.
The Spousal Consent is designed to release the “right of possession with respect to a matrimonial home”, however, there may very well be other factors in terms of price, terms, and closing date which might affect their decision. By signing this consent, those factors are no longer relevant.
However, the real estate agent must explain that and they should also explain that there is no consideration flowing to them in the Agreement of Purchase and Sale, or in this Listing Agreement, so, the only factor that will bind them to the contract is the use of the legal seal. So, the agent will have to carefully explain that. In fact, most Spouses who are about to sign off on this, should postpone signing the Listing and simply take the position that they will sign in the future if the Offer is acceptable to them.
Brian Madigan LL.B., Broker