Why you may need Dower Consent
If you’re married and planning on selling your Edmonton home, dower rights are a legal concept that you may encounter. While it’s not the case in all provinces, the Dower Act is still very much a part of Alberta law.
Historically, dower rights are a hold-over from an era when a widow’s right to stay in her home with her children needed to be protected, regardless of her husband’s debts to creditors after his death. There was a version of it for men as well, known as curtsey rights or curtsey law. In the simplest terms, present day dower rights mean that the spouse, of either gender, whose name is not on the property title has a right to remain living in the home regardless of what happens to the marriage (eg. separation, widowhood). Dower rights do not apply before or after the marriage, meaning common law partners cannot claim dower rights, and neither can a former spouse after divorce is finalized. Dower rights are very specific. They only apply in cases where the second spouse is not on the title, meaning that if you own the property jointly, dower rights do not apply. Also, the Dower Act does not grant the second spouse any ownership of the home, just the right to remain living in it until such time that they move.
In the Dower Act, the home in question is referred to as the ‘homestead’. This is to distinguish it from any other properties that may be owned by either spouse. In other words, dower rights only apply to the one property that is used as your primary dwelling while married. A spouse’s right to claim the home for their dwelling is called the ‘life estate’, as in, your spouse has a life estate interest in your home. If your home is outside of Edmonton in a rural area, dower rights define the homestead as the home itself and up to a ¼ of the land. If you live in the city or in one of the cities surrounding the Edmonton area, the homestead can include up to 4 adjoining units within one block.
So, how are dower rights applied in the law? As they explain it at Kahane Law Office, “The Dower Act requires the spouse who is not on title to consent to any disposition of land. A disposition of land usually comes up as the sale or mortgaging of the property.” (2018) To help remember the term, you can think of ‘disposition’ as ‘to dispose of’ the property, but more to the point, it’s a transfer of ownership (legally known as ‘inter vivos’) and includes:
- A transfer, agreement for sale, lease for more than 3 years or any other instrument intended to convey or transfer an interest in land;
- A mortgage or encumbrance intended to charge land with the payment of a sum of money, and required to be executed by the owner of the land mortgaged or encumbered;
- A devise or other disposition made by will; and
- A mortgage by deposit of certificate of title or other mortgage that does not require the execution of a document.
Therefore, selling or mortgaging your Edmonton home would count as disposition of the land. In order to proceed with a disposition of the home, the homeowner must be able to either: a) swear an affidavit that they are not married, b) swear an affidavit that the property to be disposed was not the marital homestead, or c) have the other spouse sign a dower release or dower consent to sell the homestead. There are several reasons why a spouse would refuse to sign a dower release (please ask your lawyer), in which case legal proceedings may get complicated.
So, what happens if dower rights are not considered before selling your home? First of all, the Edmonton Community Legal Centre explains that:
“Any sale or re-financing (i.e. a new mortgage) made of the dwelling place owned by one spouse must have an acknowledgement signed stating that:
- The non-owner spouse is aware of the nature of the disposal,
- The non-owner spouse is aware that he or she has a life estate in the homestead and has the right to disagree with the transaction;
- The non-owner spouse consents to giving up his or her Dower rights; and,
- The non-owner spouse is signing the acknowledgement freely and voluntarily without being forced to do so by his or her spouse.
The acknowledgement form must be signed in front of a lawyer who is not associated with the other spouse. The spouse cannot be present at the time of your signing the acknowledgment.” (2021)
So, if this acknowledgement is not obtained and respected before trying to sell or remortgage the homestead, it may be challenged in the Court of Queen’s Bench. This also applies if you tried to lease the property for more than three years. Also, if a sale or mortgage of the home happens without the consent of the spouse without title, that spouse can sue for “1/2 the value of the homestead or 1/2 of the sale price, whichever is greater.” (www.eclc.ca, 2021) On the other hand, if the owner of the property feels that withholding dower consent is unreasonable, or if the second spouse is unavailable to give consent, they can apply to the Court of Queen’s Bench to waive the need for a dower release.
Hopefully this review of how dower consent works in Alberta will help you prepare to sell your Edmonton home with your REALTOR®. If you are the only name on the title, but you are married, then dower consent applies to you. For more information about the real estate buying or selling process, please reach out to our team, who will be happy to help!