You must typically deal with dower rights in the context of selling a home when there is a married couple with only one of their names on the title. The Dower Act protects a spouse who is not on the title of their home from having their home sold without their consent—the titled spouse must obtain the consent of the other spouse.
Signing a release of dower rights or applying for a court order are 2 potential options for dealing with dower rights when selling a home. But like many things related to selling a home, it is a good idea to discuss the details with a lawyer experienced with real estate law in Alberta.
What Are Dower Rights?
Dower rights are part of the Dower Act. In the simplest terms, dower rights refer to the rights that a spouse has over matrimonial homes, such as their primary place of residence. Particularly in common law jurisdictions like Canada, dower rights have historically been important in cases where a spouse might be left without any property or income in the event of their partner’s death, such as back when women could not own property.
Today, dower rights are less common in this context but still have relevance in certain cases. Dower rights give a non-titled spouse a legal interest in the property, therefore allowing them to have more say in major decisions.
Dower Rights in the Context of Selling a Home
Dower rights will not necessarily prevent the sale of your home. There may simply be more steps than when you are unmarried or both spouses are on the title. A spouse who is not on the title of your home may need to fill out a dower consent and acknowledgement form at the time of listing. Notarization is typically required to ensure there is no undue influence.
Selling Without Spousal Consent
A property is not considered a “homestead” if neither spouse has ever resided on the property during the marriage. Dower rights will not typically be considered in this context, so spousal consent is not be necessary.
Release of Dower Rights
A common situation where consent is unnecessary is when the spouse who is not on the title has previously signed a release of dower rights. In this situation, the spouse who is not on the title ceases to have any dower rights in the property and the property ceases to be a “homestead.”
Common Law Relationships
There are specific laws that govern how property, such as houses or belongings, are divided in regard to common-law relationships. Dower rights do not typically apply to common-law partners. So, if you are trying to sell your home and currently have a common law partner, your partner cannot legally object to the sale if they are not on the title of the home.
Court Order
Obtaining a court order to proceed with the sale of your property may be necessary. A home-owning spouse can seek the assistance of the court if a non-owning spouse unreasonably withholds consent for the sale of a home.
This is not a simple legal proceeding, and it is advisable that most people, on both sides of the equation, seek legal advice to ensure they are within their rights—and also to ensure all necessary documentation is filled out as required by law.
Divorce
If a couple gets a legal divorce—not a separation—the non-owning spouse no longer has dower rights to the home in Alberta, and the sale can proceed without consent.
What Are the Rights of a Non-Owning Spouse Under the Dower Act?
The Dower Act does not apply solely to the sale of a home in Alberta, but there are additional details that concern homes and their legal definition.
Other spousal rights under the Dower Act include the following details:
- A “homestead” can consist of up to 4 adjoining lots on a single block in an urban setting.
- A “homestead” can consist of up to a quarter section in a rural setting.
- The surviving spouse has the right to the home where they lived if the other passes away, regardless of whether their name is on the title.
- The surviving spouse gains life estate rights, which means they can remain on the property until they pass away. However, dower rights expire if they move away from the property.
- A will becomes invalid if the owning spouse leaves the property to someone other than their non-owning spouse without legal consent.
Proceeding with a Smooth Sale
Beginning the home sale process by speaking with a lawyer is often the best way to get started. If you are unsure if Dower Rights apply in your transaction, a lawyer can help you sort out details like dower rights before they become a hindrance to the sale.
At KH | Dunkley Law Group, we provide our clients with thorough advice regarding dower rights. We can ensure the appropriate documents are executed to facilitate a smooth closing of home sale transactions. So, call us today to set up a consultation with one of our experienced lawyers.
This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.
