Gynet Gloria KOZUB
Why is my Notary Requiring my Spouse’s Signature?
If you are asking yourself this question you are likely either a Vendor who is married but owns a property as sole owner, or you are a Purchaser who is married and who is about to own a property as sole owner.
Section 404 of the Civil Code of Québec tells us that neither spouse of an immovable with fewer than five dwellings that is used in whole or in part as a family residence may alienate the property without the written consent of their spouse. The term “alienating a property” refers to either selling or hypothecating a property.
If you are selling a property, your spouse signature is required on the Deed of Sale, even if they are not on the ownership title. Your spouse must sign as an intervening party to consent and acknowledge that their spouse is selling a family residence.
If you are a purchaser and you are contracting a Deed of Hypothec for your mortgage, this section also applies to you and your spouse’s signature will be required on the Deed of Hypothec (note that this does not make them responsible towards the bank). Your spouse must sign as an intervening party to consent and acknowledge that their spouse is hypothecating a family residence.
The consequences of not having a spouse intervene in either deed can lead to an annulment of the transaction if a declaration of family residence was previously published at the land registry, or can lead to the spouse having a legal recourse against the selling or hypothecating spouse or even against the Notary who allowed the transaction to happen without their consent.
It should also be noted that this rule applies to all spouses in Québec, regardless of their matrimonial regime.
And what if the property is not used as a family residence?
The Civil Code of Québec defines “family residence” as “the residence where the members of the family live while carrying on their principal activities”.
If you are selling a property and believe your property is not a family residence and you do not want your spouse to intervene, you must submit proof of this fact to your Notary. Be sure to ask your Notary what forms of proof are sufficient to your situation.
If you are buying and hypothecating a property, your spouse’s signature will always be required since the property may someday become used as a family residence.
I am undergoing divorce proceedings and do not want my spouse to intervene
Unfortunately, until you are legally pronounced to be divorced by judgment, you are still married, even if the procedures have begun. Even in the case of separating or divorcing spouses, their intervention will still be required.
It is the Notary’s obligation to ensure that your spouse is aware of these types of transactions. This is to protect you, your spouse, and the Notary against any potential legal recourse or consequences.