What are Dower Rights?
The Dower Right is a historic concept that still exists today in Alberta. They are a married person’s rights to occupy the dwelling place or use household contents in that place which are owned in the name of their spouse. Under the Dower Act, neither spouse may sell or mortgage the home without the other’s written consent.
These rights do not exist before you marry, if you are common-law, or when you are divorced. You have Dower rights if you are presently separated from your spouse but not yet divorced.
The original purpose of the Dower Right, first established by English Law during confederation in Canada, was to protect a wife and children with a place to live if her husband should pass away. Dower rights have since been expanded to protect both husband and wife, but have been done away with in many provinces.
The important questions to consider when preparing to list or re-mortgage a home:
Are you legally married?
Who is listed on the title?
Have either of you lived in the home since the marriage?
If there is only one title holder who is legally married and either spouse has lived in that home at any time since the marriage, then the title holder’s spouse would have Dower Rights as stated above unless otherwise specified in a legally binding agreement, such as a previously signed Release of Dower Rights. Dower does not apply when the property is co-owned.
How can Dower Rights impact a home transaction?
Dower Rights can prevent one party from selling the home that they are the legal title holder on if they are still married and the other person does not want to sell. If they do want to sell the home, they will require their spouse’s written permission.
If consent to allow the title holder to sell the home is refused by their spouse, the title holder may apply to the Court of Queen’s Bench for a Court Order eliminating the need for their consent. If the refusal is unreasonable or if that person is not readily available to give their consent, the Court may allow the sale of the home without their consent.
If the home is sold without your spouse’s consent, the owner spouse may be liable to pay their spouse half of the value of the sale, or half of the value of the property at the time of the sale, according to the Dower Act.
What is the process for Dower Rights during the home sale?
Two forms are required to be completed in order to waive Dower Rights to legally sell a home.
The first form (Dower Consent and Acknowledgement) must be completed before listing the property and signed in the presence of a commissioner of oaths (often found on staff at registry offices).
Once an offer is received, both parties should sign the purchase agreement. The second form (Purchase Contract Dower Consent and Acknowledgment) must also be completed in order to actually sell the home and transfer title. This form must also be signed in the presence of a commissioner of oaths.
Bottom line – make sure to consider if Dower Rights are applicable to your situation prior to listing your home. If you have any questions about how this may apply to you, please reach out to our team at [email protected]
