Getting the Spousal Consent
From time to time, this can be quite stressful for real estate agents. One spouse owns the house. Both spouses lived in it. They have broken up and they are currently in the process of negotiating a settlement.
Sometimes, they both have lawyers, sometimes just one party has a lawyer, and sometimes, they both “had” lawyers but neither of them can afford the bills anymore.
So, trying to sell the condo is a problem.
The spouse who has moved out, will still need to sign and that might present a challenge.
The first issue is “who is the spouse” and “what is your relationship to the spouse”. There are basically three answers:
Member of the Public (or, Consumer).
We will talk about that relationship later. Right now, we simply need to focus on the “paperwork”.
The spouse should be signing:
- The Listing,
- The Agreement of Purchase and Sale,
- The Transfer/Deed.
If the spouse is handy and cooperative, then this is not likely a problem, however if the spouse is moving away, and is otherwise content with the arrangements in place, then, we need some paperwork to sign up, before the spouse moves.
Have a look at the following document:
The undersigned spouse of John Smith, the registered owner of 123 Main Street, Lot 4 Plan 40M-1694, in the City of Toronto hereby consents to the disposition of the property by conveyance or mortgage consisting of all or any part of the equity in the premises pursuant to the provisions of the Family Law Act, R.S.O.1990, and hereby agrees to execute all necessary or incidental documents in order to give full force and effect to either or any of such transactions, as may be required.
Dated at Toronto, Ontario this ____ day of February, 2019.
Signed, Sealed and Delivered
In the presence of
Witness Mary Smith
The purpose of this form is to have Mary “sign off”. So, now, John the registered owner can proceed without Mary’s signature.
Mary should have independent legal advice, but essentially here, she is simply consent to a proposed transaction without claiming a possessory interest under the Family Law Act.
This will permit the sale or mortgage to proceed without a new signature from her. Mary still has rights because the matter of the resolution of their respective rights with respect to one another hasn’t yet been finalized. However, for the sake of the real estate agent, Mary’s consent has been obtained, even though it is in advance of the actual sale or mortgage.
Brian Madigan LL.B., Broker