If you are married, Ontario's Family Law Act says the matrimonial home cannot be sold or mortgaged without the other spouse's written consent or a court order, even if only one of you is on title. Common-law partners do not have a matrimonial home, so title matters more. In most cases, the sale money is held or divided under a written agreement or court order.
Deciding what to do with the home is one of the hardest parts of a separation. It is tied to money, children, routines and memories. You do not have to settle everything at once, but a few rules shape what is possible, and knowing them early can prevent a stalled sale.
Does your spouse have to agree to sell?
For married couples, yes, in most cases. Under Part II of the Family Law Act, both spouses have an equal right to live in the matrimonial home, no matter whose name is on title. One spouse cannot sell or mortgage it without the other spouse's written consent or a court order. Steps to Justice and CLEO, two public legal information sources, put it plainly: you cannot sell or mortgage a matrimonial home without your spouse's written permission or a court order.
A sale made without the required consent can be set aside by a court in some situations. That is why buyers' lawyers ask about spousal status, and why your lawyer will want this settled before you sign an agreement of purchase and sale.
If a spouse cannot be found, is not able to consent or is refusing unreasonably, a court can be asked to authorize the sale. That takes time and legal costs, so it is usually a last step.
Married vs. common-law: what is different?
| Married spouses | Common-law partners | |
|---|---|---|
| Matrimonial home rules apply? | Yes | No |
| Right to stay if not on title | Equal right to live there until an agreement, court order or divorce | Generally no automatic right |
| Can the owner sell alone? | Not without consent or a court order | The owner on title generally can |
| Property division | Equalization of net family property | No equalization; other claims may be possible |
A common-law partner who is not on title may still have a claim, for example that it would be unfair for the other partner to keep all of the value. Steps to Justice notes these claims can be hard to prove. If you own the home together, each co-owner generally has to sign the sale, and a court can be asked to order a sale if you cannot agree.
What happens to the money from the sale?
On closing, the lawyer pays out the mortgage, any line of credit secured on the home, real estate commission if you listed, legal fees and adjustments. What is left is the net proceeds.
How the net proceeds are shared depends on your agreement or a court order. For married spouses, the home's value is part of the equalization calculation under the Family Law Act, which is more involved than splitting the cheque in half. It is common for the net proceeds to be held in the lawyer's trust account until the spouses sign a separation agreement or a court decides.
Deadlines apply to property claims. For married spouses, CLEO explains that a claim for equalization generally has to be started within six years after you separate or two years after a divorce, whichever comes first (six months after a spouse's death). A court can extend these deadlines only in limited cases, so ask your family lawyer which dates apply to you.
Tax points to raise with your accountant
- Principal residence exemption. A family unit can generally designate only one home per year. If each of you owned a separate property during the marriage, your accountant will need to look at which one to designate.
- Reporting the sale. The CRA requires you to report the sale of a principal residence on Schedule 3 and designate it, even if no tax is owing.
- Short ownership. Canada's residential property flipping rule treats profit on a home owned less than 365 days as business income. A relationship breakdown is one of the listed life-event exceptions, subject to conditions such as having lived apart for at least 90 days.
These are general points, not tax advice. Talk to your accountant before the sale closes. See also our guide to taxes when selling a house in Ontario.
Common ways separating couples handle the house
- One spouse buys out the other. This needs a valuation, and usually new financing in one name.
- List the home and share the net proceeds. This often gets the highest price, but needs cooperation on pricing, showings and repairs.
- Sell directly to a buyer. This can suit couples who want fewer showings, no repairs and a fixed closing date. The price may be lower than an open-market sale, so compare it with a realistic listing estimate.
- Keep the home for now. Some couples agree to delay a sale, for example until a school year ends, and put the terms in writing.
Whatever you choose, both of you should get independent legal advice. A buyer, agent or mediator is not your lawyer. Our checklist on how to check a cash home buyer can help you compare offers.
Sources we checked
We checked these government, court and legal-information sources on September 26, 2026. Rules and amounts can change, so confirm the details for your situation with a lawyer, accountant or licensed insolvency trustee.
- Family Law Act, R.S.O. 1990, c. F.3 (Part II — Matrimonial Home)
- Steps to Justice — We're married. Who gets to stay in our home if we separate or divorce?
- Steps to Justice — Learn about the matrimonial home
- Steps to Justice — We're not married. Who gets to stay in our home if we separate?
- CLEO — Property division: married couples
- CRA — Residential property flipping rule
- Canada Revenue Agency — Principal residence and other real estate
- Law Society of Ontario — Law Society Referral Service
Common questions
Can my spouse sell our house without my permission in Ontario?
If you are married and it is your matrimonial home, generally no. The Family Law Act requires the other spouse's written consent or a court order, even if only one spouse is on title.
Can I force the sale of our house after separation?
If your spouse will not agree, you can ask a court to order a sale. For co-owners, the Partition Act is often used. For a matrimonial home, the court can also authorize a sale in some situations. Talk to a family lawyer about which applies.
Do common-law partners have to agree to a sale?
Common-law couples do not have a matrimonial home under Ontario law. If only one partner is on title, that partner can generally sell. The other partner may still have a legal claim, so both should get advice.
Who gets the money when a house is sold during a divorce?
It depends on your separation agreement or a court order. Often the net proceeds are held in trust by a lawyer until the division of property is settled. For married couples, equalization rules apply.
Do we pay capital gains tax when we sell the family home?
Often no tax is owing if the home qualifies for the principal residence exemption for every year you owned it, but you still have to report the sale to the CRA. Talk to your accountant about your situation.
Prepared by our team for Ontario homeowners. This is general information, not legal, tax or financial advice on a particular transaction. Editorial approach and corrections.
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