Matrimonial Home Designations in Ontario

There is an opportunity under the Family Law Act to designate a home as a “matrimonial home”.

You might think that married couples would wish to avail themselves of this opportunity. However, it’s rarely used. In fact, no one bothers.

The reason is rather simple. If a property is not designated, then third parties will presume that it is a matrimonial home. The consent of both parties will be required. The third party purchaser or mortgagee will not want to take a chance.

So, here are some of the rules that apply:

  • A designation means that the property is a family residence
  • There can be more than one property designated
  • If both parties designate a property (or more than one) then all other properties that are not so designated will be deemed not to be matrimonial homes

Essentially, this means that the designation provisions are helpful to lawyers when a couple who are negotiating a separation agreement of divorce settlement need to dispose of one of their properties. When times are good, the designation is not particularly helpful since it only compromises matters later.

However, not all parties can be trusted. And, this is the second and perhaps most important reason for designating a home as a “matrimonial home”.

Assuming that Bob has title to the house in his own name, and he is now separated from Mary, most of the time third parties will not undertake business with Bob alone. Mary’s consent on the listing, the agreement of purchase and sale and the conveyancing documents will be required.

But, what if Bob is a “rogue”? He fails to disclose Mary’s interest to his sales agent, and his lawyer. He might say that he was never married, or that Mary’s consent is not required because she has settled matters and “signed off”.

In that case, the innocent purchaser or mortgagee obtains title without being subject to Mary’s interest. They get it free and clear. Naturally, this is wrong,  in fact, but they have documents in their file all saying that Mary’s consent is not required, and the only person who signed them was Bob.

So, if Mary believes that Bob has gone rogue, then she should immediately instruct her solicitor to register such a designation on title. If this precaution were taken, then the purchaser and the mortgagee would take title subject to Mary’s interest. At the very least, it forces Bob to deal with Mary’s interest honourably in the circumstances. This registration acts just like a “lien” on the title.

All too often, spouses in Mary’s position find out far too late that the property has been sold and that Bob has left the country.

Brian Madigan LL.B., Broker

Comments 6

    1. Post

      Yes, but first you have to have it designated by one person as a matrimonial home, which is like a lien.

      Then, you can have both people say that it is not a matrimonial home, which is like a release.

  1. Is signing as a consenting spouse on the title and on mortgage not enough to indicate that the home is a matrimonial home? I recently separated from my husband and he is claiming that since the title is on his name, I don’t have any rights to the sale of our home (I moved out of the home). Thanks

    1. Post

      The key date is the date of separation.

      If it was a matrimonial home then, it’s still a matrimonial home.

      You would be wise to consult a lawyer and register a Designation against the Title to the property.

  2. I have a question. What if the house is owned by multiple people :

    Example : house is owned by one brother, one sister , and a sister in law (2nd brothers wife). All three of their names are on the title.

    Can the spouse of the first brother register a matrimonial designation on the house without any consultation or signed documents from the other two people on title ?

    Thank you.

    1. Post

Leave a Reply

Your email address will not be published. Required fields are marked *