The real problem with the term “spouse” is that there are actually two definitions, not one, but two.
For the sake of simplicity, I will describe them as:
- Property spouse,
- Support spouse.
If you are a real estate agent, then you need to know the meaning and properly understand the definition of a “property spouse”. You don’t need to care about anything else. It’s not your business. Lawyers, marriage counselors and others associated with the breakdown of marriages will need to deal with the issue of “support”. It has nothing to do with real estate. So, just stick with the one definition and that’s it.
Property Spouse Defined
Under s. 1 (1) of the Act, generally:
“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.
Under s. Part 3 of the Act dealing with Support Obligations:
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.
The first definition is the one which applies to all matters under the Act, except for support. Many articles written in newspapers and magazines will make reference to the second and expanded definition since it is dealing with support.
For some reason, many real estate agents will rely on this source of information rather that the Act itself. That means they will ascribe rights to non-titled spouses which simply don’t exist.
When we are talking about the spouse signing the Spousal Consent, we are ONLY ever talking about the property spouse, that means:
- Married, and
- With a Certificate.
That marriage may indeed be either void or voidable, but there was a ceremony and a marriage Certificate was issued at the end of it (Ontario).
The important matter is that the Spousal Consent should not be obtained from people who don’t qualify, for a Listing Agreement, Agreement of Purchase and Sale or Transfer/Deed. It gives one party the belief that they have rights that they don’t have, and it gives the other person, the belief that they have lost rights which hasn’t happened. But, in both cases, it can lead to litigation.
Be careful, if you are not sure consult a lawyer who is knowledgeable for advice.
Brian Madigan LL.B., Broker