Understanding Dower Rights in Alberta: How They Affect the Disposition of Family Homes
Before diving into the details, it’s important to understand why dower rights matter: they protect spouses from losing their home without consent and ensure fairness in property transactions. This article explains the essentials of the Alberta Dower Act and what you need to know if you are selling or mortgaging your home.
What Are Dower Rights?
Dower rights in Alberta are governed by the Dower Act, which protects a spouse who is not registered on the title of a property used at any time during the marriage. The act generally affects the dwelling where spouses live or have lived as their residence- the Family Home. In residential real estate transactions, it is crucial to determine where the Dower Act applies or not as it may prevent the disposition of the Property.
A Disposition of the family home according to the Dower Act, includes:
- Transfers of land
- Leases (over three years)
- Mortgages or encumbrances
- Testamentary dispositions (via a will)
Key Entitlements Under the Dower Act
The non-titled spouse has the following rights:
- Consent Required: The spouse who is not on title must consent to any disposition.
- Right to Sue: If a disposition occurs without consent, the non-titled spouse can:
- Sue the titled spouse for damages.
- Apply to the Assurance Fund if the judgment is unsatisfied.
- Life Estate: Upon the titled spouse’s death, the surviving spouse gains the right to occupy and possess the family home for life.
- Voidable Mortgage: Mortgages registered without consent and involving fraud are void under case law.
When is Consent Required?
For the purpose of residential real estate transactions, the consent of the spouse who is not on title is required for the disposition of the family home when:
- Only one person is on title. If two or more individuals are on title, the Dower Act does not apply. However, it is important to note that the court may intervene if the property was transferred to another person solely to defeat the Dower Act. For example, if someone adds their parent to the title before getting married for the purpose of avoiding the Act, the court may treat this as an attempt to circumvent the law and consider that parent a trustee for the original owner.
- The person on title is legally married. If the couple is not married, the spouse who is not on title cannot benefit from the protections of the Dower Act. However, not being covered by the Dower Act does not mean that any claim they may have to the property is defeated. Adult interdependent partners may still have property interests protected through other legal means. With timely legal advice, a partner who is not on title may be able to challenge a disposition.
- The property has been used as the family home. Even if the property was acquired before marriage, or if during the marriage the property was acquired with inheritance or gifts, or if the married couple no longer lives there at the time of disposition, dower rights may still apply. Once the property gains the status of family home, it will remain until the end of the marriage.
- The property is not excluded from the definition of “homestead” under the Dower Act. The Act’s definition covers most residential properties. Therefore, when selling a condo, townhouse, or house and the spouse of the registered owner is not on title, consent would be required if either spouse ever lived on the property since the time of the marriage. If neither spouse lived on the property since the time of the marriage, the registered owner would need to swear a Dower Affidavit that states neither themselves nor their spouse ever lived on the property since the time of the marriage.
- There is no Dower Rights Release registered on title. The Act allows for the release of dower rights, which must be executed by the spouse who is not on title, separately from the registered owner, and in the presence of a lawyer, notary, or commissioner for oaths. If a Dower Rights Release is registered on title, then consent is not required. Providing a release—like providing consent—does not mean the spouse who is not on title is waiving any rights against the other spouse they may have under other legislation, such as the Family Property Act. It only facilitates the disposition of the property.
- There is no Court Order dispensing consent. In certain circumstances, the court may direct the Land Titles Office to register the disposition without the consent of the spouse who is not on title. Some of these circumstances include when the spouse’s whereabouts are unknown or when a cohabitation or separation agreement is in place.
Land Titles Office’s Requirements
As indicated before, if consent is not required, the spouse who is on title will need to swear an affidavit stating that neither themselves nor their spouse ever lived in the property during the marriage. If consent of the non-titled spouse is required to proceed with a disposition, the Land Titles Office requires a Dower Consent form. This form confirms that the non-titled spouse consents to the disposition and relinquishes dower rights.
The non-titled spouse must:
- Execute the Dower Consent in front of a commissioner for oaths, lawyer, or notary.
- Acknowledge that they:
- Understand the nature and effect of the disposition.
- Are aware of their statutory rights (including veto and life estate).
- Consent freely and voluntarily, without coercion.
The official certifying the consent must sign a form confirming this acknowledgment. The form must be attached to the document causing the disposition, and the pages should be numbered to ensure it is clear that the consent is part of the instrument and relates to the disposition. Consent does not waive other rights, such as claims for compensation that spouse may have for example under Family Property Act.
Final Thoughts
Dower rights are a critical protection for spouses in Alberta. If you are considering selling, mortgaging, or transferring a family home, ensure compliance with the Dower Act to avoid legal complications.
Need legal advice on dower rights or property dispositions? Contact our office for guidance tailored to your situation.
