When buying, selling, or mortgaging property in Alberta, married couples may encounter a concept called "Dower rights" or “Dower.” These rights are unique to certain provinces in Canada. In Alberta, they play an important role in protecting a spouse’s interest in the family home. If you are married and own property in Alberta, it is important to understand how dower rights affect your legal and financial decisions.
What are Dower rights?
Dower rights, originally came into existence to protect married women from their husbands leaving them homeless in the event of property transactions or death. This was during a time when married women and women in general had limited or no property rights of their own. Now it applies to any person who is legally married and is not on title as an owner of the land their spouse owns.
Dower is designed to prevent a homeowner from selling, mortgaging or disposing of the matrimonial home (homestead) without the consent of their spouse. Dower also gives a non-titled spouse the right to live in the property for their lifetime in the event their spouse dies. This is called a life estate.
Dower requires certain elements to be satisfied.
1. The homeowner is legally married;
2. Either one has resided in the “matrimonial home or homestead” at any time since the marriage. Note: it does not require both people to live there.
What is “legally” married?
A legal marriage for Dower purposes means that you were married in a legally recognized service and have a marriage certificate issued by the government where you were married. It does not include common law or adult interdependent partnership relationships. Dower rights are terminated by way of divorce, by the spouse signing a Release of Dower rights, neither spouse having ever resided on the property or by being the last of the married couple to die.
Separation, even a legal separation or separation with a separation agreement dealing with all property interests, does not end Dower rights, no matter how long a person has been separated.
If a homeowner has never been married, is divorced or is widowed, under the Dower Act the homeowner is considered not married and can sign an affidavit to that effect for Land Titles purposes.
What is a homestead for Dower purposes?
A “homestead” is land where a dwelling house is located and the house was occupied by the owner or their spouse as a residence at some time during the marriage. A couple could have several properties that qualify as “homestead”. For example if there is a primary residence and a rental property or second home all in one person’s name Dower could apply to all. We deal with this in two ways. If the couple or either person has stayed at that property since marriage, then the non-owner spouse will have to sign a consent of spouse allowing the real estate transaction to proceed. If neither person has ever stayed at a property, then the spouse on title can sign an affidavit stating that neither I nor my spouse have ever resided in the property and that will dispense with Dower requirements.
For any married couple that is separated but not yet divorced, Dower can cause difficulties. Each can purchase their own house after separation but if one needs to sell that house before the divorce is final, their estranged spouse will still be required to sign a consent of spouse to release their Dower rights.
One way this can be avoided is for your spouse to sign a Release of Dower Rights when the new property is purchased and that document is registered on title. A spouse signing a Release of Dower Rights is giving up their Dower rights in that specific property from that point on. The owner can then sign a Dower affidavit, referring to the Release of Dower Rights to dispense with Dower rights for Land Titles and no spousal consent is required.
In what ways can Dower be complied with?
As stated above, there are several methods to deal with Dower rights in a real estate transaction.
1. The owner on title can sign an affidavit stating that dower does not apply because they are either a) not married or b) neither spouse has ever resided on the property since the date of the marriage;
2. If the owner is married and either one both have resided on the property, the non-owner spouse can sign a consent of spouse, consenting to the real estate transaction and giving up their Dower rights in that property;
3. If the owner is married and either one or both has resided on the property, the non-owner spouse may choose to sign a Release of Dower Rights document which is registered on title and gives up any Dower rights in that specific property. No consent is required once the Release is registered.
4. A court order may be sought asking the court to dispense with the requirement for spousal consent. This is typically used when a spouse refuses, cannot be located or in special circumstances such as the spouse needing to consent is incompetent.
Failure to comply with the Dower Act can result in serious consequences, including:
A transaction being declared invalid,
Potential legal action for damages,
Complications in estate administration upon death
Dower Rights and Power of Attorney
If the owner is incompetent and there is an active Power of Attorney, general or specific, their Attorney may sign a Dower affidavit stating the owner is not married, they or their spouse never resided or there is a Release of Dower Rights or court order.
However, if the non-owner spouse is incompetent, an Attorney acting under Power of Attorney for that person cannot sign a consent of spouse. In this situation, a court order dispensing with spousal consent must be sought.
Dower Rights and Estate Planning
Dower rights also have implications for estate planning. If a married person dies and leaves their home to someone other than their spouse (e.g., a child), the surviving spouse will still have the right to live in the home for the rest of their life under the life estate provision of the Dower Act and if the home is to be sold, must consent to the sale.
If you are married and own or plan to acquire property in Alberta, it is essential to be aware of how dower rights may apply. Whether you’re buying, selling, or planning your estate, consulting us at Galbraith Law can help you navigate these legal obligations and avoid costly surprises.
If you have questions about dower rights or need help with a real estate or estate planning matter, contact us at https://www.galbraith.ab.ca/contact/.