Q. We put in an offer on a condo through our real estate agent and it was accepted by the vendor a month ago. Subsequently, we learned that the home had been occupied by the vendor and her then husband. Although she was not married when she purchased the property, it was at one time a matrimonial home. In the interim period, the couple was divorced but there appears to be no settlement and the court file for their divorce was discontinued, apparently because they could not resolve matters. Our lawyer says we don’t have to worry about the former spouse and getting his consent to the transaction as he was never on title to the property but we are still worried the transaction may be faulty. What is your advice?
A. Usually, when a property has been occupied as a matrimonial home, no matter whether both spouses were on title, the spouse who is not on title usually has to consent to a transaction according to the Family Law Act. It is somewhat troubling that it appears their divorce was unresolved and therefore they may not be technically divorced. However, your lawyer is correct that you shouldn’t worry about the transaction.
As a matter of course, the vendor will state her matrimonial status in a Declaration. She will simply state: “I am not a spouse.” You can rely upon this declaration that is sworn in front of a commissioner of oaths if in turn the ex-spouse challenges her ability to sell what had at one time been a matrimonial home. The issue could arise but it would be between the spouses and should not affect your title to the property. Your transaction should in this respect go off without a hitch.
Jeffrey Cowan is the principal with Cowan Taylor and McGee, Barristers & Solicitors. The information in this article should not be relied upon as legal advice.