Spousal Consent and the Pre-nuptial Agreement


The issue of spousal consent arises frequently.

The law has its basis in the Family Law Act. There are certain “rights” that are afforded to a spouse in respect to a matrimonial home. The parties cannot contract out of those.

It’s important to know that “ownership and equity” in a matrimonial home are quite negotiable under a domestic agreement which includes pre-nuptial agreements.

What can’t be pre-agreed and negotiated away is the right to “possession”. One party can’t lock out the other party. If the spouse who is on title has the right to occupy the matrimonial home, then so does the other spouse.

When I say “spouse”, I mean “married” as in legal spouse, there no such thing as “living together” or “common law” for this right of possession.

The right of possession cannot be dealt with in a domestic agreement. That provision will be “null and void” and not enforceable.

There can be many properties which will qualify as a matrimonial home, at the same time: consider a house, a condo apartment, a cottage and a time share. They are all matrimonial homes if the couple lives there together, even occasionally throughout the year.

The relevant time period for the matrimonial home determination is the date of separation. That could have been years ago, even decades. If so, the non-titled spouse will still have to “sign off”.

Brian Madigan LL.B., Broker


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