A few years back, a potential client wanted me to sell his home. I prepared for the listing presentation by pulling the title and saw that only his name was registered on it.
The problem was that he was married and didn’t want his wife to know he was selling their home. They were separated (not divorced) and she was currently out of town. He argued that since only his name was registered on the title, he didn’t need his wife’s permission.
1. What is the Dower Act?
The Dower Act is provincial legislation that prevents a married person from disposing of the homestead without the consent of the other spouse. This includes the right of the surviving spouse to a life estate in the homestead as well as the personal property of the deceased married person.
2. History of the Dower Act
The Dower Act was passed as a result of campaigning efforts by Canadian Feminist, Emily Murphy (Famous Five).
While accompanying her husband on a trip around the countryside, Murphy met a woman who had been left homeless and penniless when her husband sold their farm and left without her and their children. Much to Murphy’s horror, there was no legal recourse for the woman who had spent 18 years working on the family farm.
Murphy set out to change this situation, and spent several years studying on her own. She worked to convince MLAs to support her cause. In 1917, the Dower Act was finally passed in the Alberta Legislature, establishing a wife’s right to one-third of her husband’s estate.
3. Purpose of the Dower Act
Today the Dower Act grants the lawful spouse of the registered owner two key entitlements:
(i) A life estate (the right to live on the property for the remainder of the spouse’s life)
(ii) Veto rights to prevent the sale or any other disposition of the property
The are three conditions that trigger the need for Dower Consent & Acknowledgment (DCA). The three conditions are:
• The seller is legally married; AND
• Only one name is registered on title; AND
• Either the seller or his/her spouse has resided on the property at any time since the marriage.
Dower Rules at a Glance
• If couples are separated but still “legally married”, dower rights could still apply.
• If same-sex couples are legally married, dower rights could still apply.
• Dower Act does not apply to cohabitating or common-law couples.
• Dower Act does not apply if there are any two names on title.
• Even if only one spouse (either owner or non-owner) has resided on the property, dower rights could apply.
• Spending only one night on the property since the marriage could trigger dower rights.(To clarify, this means during the length of the marriage, not since the marriage ended.)
Using a Commissioner for Oaths
In order for the registered owner to sell the property, the non-owner spouse must have a Dower Consent & Acknowledgment form be taken to a Commissioner for Oaths.
This process ensures that the non-owner spouse understands the rights he or she is giving up and prevents the registered owner from exerting pressure on the non-owner spouse to sign. It should be made clear to the non-owner spouse that they are giving up rights only to this particular property and that the consent is not a general release.
If the non-owner spouse wishes to waive dower rights completely, a Release of Dower Rights form must be signed before a lawyer.
“Note: These materials have been prepared for information purposes only. They are not intended to be, nor do they constitute, legal advice. Copyright Alberta Real Estate Association. Reprinted with permission. ”