The Dower Act was passed as Alberta law in 1917. It was legislated after Emily Murphy, one of Alberta’s Famous Five, worked hard to get the law passed. Before the Dower Act, a common law right created some protection for spouses. The protection for a wife was called Dower. The protection for a husband was called curtsy. The Act has changed a lot since then but still applies.
What Are Dower Rights
Today, dower rights protect the spouse of a registered owner of real property (a house on land). 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. There are more situations that also tie in these rights. Please contact us if you need more information.
Other Names for Dower Rights Elsewhere
Other provinces and states have similar laws to Alberta with respect to dower rights. The most common similar set of laws involve homestead rights.
What is a Disposition Under the Dower Act that Triggers Dower Rights?
Under the Dower Act, a disposition is:
means a disposition by act inter vivos that is required to be executed by the owner of the land disposed of, 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.
What is Required to Trigger Dower Rights in Alberta?
The test for dower rights is straight forward. Even though the rules (described below in this section) are simple, they are often misunderstood. There are also some exceptions. For this reason, we have created a flow chart to help you determine if dower rights apply. The main considerations are:
Title is in one person’s name
If a property is co-owned, then no rights exist, even in the married person’s share.
The person on title is married
The Act only apply if a person is actually married. Common law relationships do not have the same protection. If the sole person on title is legally married, then the rights apply.
Dower requires that either person has lived in the property since the time of their marriage
This is a key step that is often not looked at correctly with dower rights in Alberta. They key parts are that either of the two married people livedin the property. People often think that no such rights exist due to the fact that only one person lived there. This is not the case. In an overabundance of caution, consider one of the people having slept overnight in the property as meaning that they lived there. Call us for more help on this one if needed.
Getting Around Dower Issues
Dower rights in Alberta protect spouses.
There are a few ways to get around dower rights. The easiest one is to get a dower consent for a specific transaction. You can also get a dower release that will release the rights as against a specific property. This release can be revoked if the releasor wants to do so. As stated above, if there is more than one person on a title, then no rights apply in Alberta. When buying a property that neither spouse has lived in, then dower rights will not apply until someone does live there.
Consequences Of Ignoring Dower
Sometimes a spouse attempts to get around the rights that their spouse has. Doing so inappropriately includes very harsh penalties. In fact, the cost is equal to half the value of the home. To be clear, it cost is not half the equity in the home and land but half the value. Speak to one of our lawyers if you are contemplating this action.