The Dower Act has been in place in Alberta for over a century and was originally designed to protect the rights of a wife who was unable to own property. If the husband decided to sell the property, the wife could not be evicted.
This legislation was created in response to the possibility of a marital dispute. Although it is important to understand the history of the Dower Act, it is also important to understand its current purpose and how it applies to modern situations.
The Dower Act is a piece of legislation that provides certain protections to spouses in real estate transactions in Canada. If you are married and considering selling, mortgaging, or otherwise disposing of real estate that you own, you should understand how the Dower Act may affect your ability to do so.
In Alberta, the Dower Act applies to all real estate transactions involving married persons.
What Is the Purpose of the Dower Act in Real Estate?
The purpose of the Dower Act is to protect the non-dowering spouse from being disadvantaged by the sale, mortgage, or transfer of real estate without their knowledge or consent. It recognizes that real estate is often a significant asset and that both spouses have a stake in the property.
The Dower Act, therefore, requires that both spouses be involved in any decision to dispose of the property.
Consent
Under the Dower Act, the spouse who is selling, mortgaging, or disposing of the real estate (the “dowering spouse”) must obtain the consent of their spouse (the “non-dowering spouse”) before completing the transaction.
This means that the non-dowering spouse has to agree to the sale, mortgage, or transfer of the property. If the dowering spouse does not obtain the consent of the non-dowering spouse, the non-dowering spouse has the right to apply to a court to have the transaction set aside.
This means that the court can cancel the transaction and restore the property to the ownership of the dowering spouse.
Life Estate
In addition to requiring the consent of the non-dowering spouse, the Dower Act also provides that the non-dowering spouse is entitled to a life estate in the property. This means that the non-dowering spouse has the right to live in the property for the rest of their life, even if the property is sold or otherwise disposed of by the dowering spouse.
The life interest is intended to provide the non-dowering spouse with a measure of security and stability, especially if the property was the family home and the non-dowering spouse has nowhere else to live.
When Does a Dower Apply?
It’s important to note that the Dower Act does not apply to real estate transactions involving common-law spouses unless the couple has registered a domestic partnership or cohabitation agreement that specifically addresses the rights of each spouse in real estate transactions.
To determine whether the Dower Act applies to a real estate transaction, there is a three-step process to follow:
- Is the land title in the name of only one person? If yes, proceed to step 2.
- Is the person named on the title legally married? If yes, proceed to step 3.
- Has either person named on the title or their legally married spouse ever lived on the property, even for a day? If the answer is yes, then the Dower Act applies to the disposal of that property.
How Does the Dower Act Apply When Real Estate Is Sold?
In order to sell or refinance (obtain a new mortgage) a dwelling place owned by one spouse, the non-owner spouse must sign an acknowledgement stating that:
- They are aware of the nature of the transaction and their dower rights.
- They understand that they have a life estate in the homestead and the right to disagree with the transaction.
- They consent to giving up their dower rights.
- They are signing the acknowledgement freely and voluntarily, without being coerced by their spouse.
The acknowledgement form must be signed in the presence of an attorney who is not related to the other spouse. The spouse cannot be present when you sign the acknowledgment.
Need Help with the Dower Act?
If you are involved in a situation where the Dower Act may be relevant, it may be helpful to seek the advice of a lawyer at KH | Dunkley Law Group. We can review the specifics of your case and provide guidance on the best course of action.
We can also help you understand your rights and obligations under the Dower Act, as well as assist with any necessary paperwork or negotiations. In some cases, it may be necessary to go to court to resolve a dispute related to the Dower Act.
In these situations, KH | Dunkley Law Group can represent you and advocate on your behalf. Overall, seeking the help of a lawyer can provide valuable assistance in navigating the legal complexities of the Dower Act. View our flat fee pricing for more information.
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.
