Releasing The Rights A Spouse Has In A Property
People who buy or sell a home in Alberta, often hear about Dower rights. The Dower Act creates Dower rights. This legislation gives a married person, who is not on title to a home, a life interest in their home or homestead. That right only arises if their spouse owns the home without anyone else on title and if they or their spouse lived in their home any time after their marriage. These rights rose from the common law before the law protected men and women equally. A Dower release is a mechanism where a person gives up their rights under the Act. The real estate lawyers at Kahane Law Office in Calgary, and Edmonton, assist clients with Dower issues.
These rights function differently that the rights of a spouse on separation or divorce. In general on separation or divorce the dispute is over equity. The financial value built up in the home. Signing a Dower release does not give up rights to equity in the home; only a life estate.
The Ways To Release Dower Rights
Many people ask about dispensing with their obligations or rights under this Act. There are a number of ways to dispense with Dower rights in Alberta. For example, the most common mechanisms include:
A Dower Consent
A Dower consent is where the non-titled spouse consents to give up their Dower rights for a single instrument. For example, if the titled spouse is refinancing a mortgage. In this case, the spouse with dower rights consents to the registration of the mortgage document at the Alberta Land Titles Office (located in both Edmonton and Calgary). The consent provides no future release of dower rights. If the title holder decides to place another mortgage on the property the next week, the non-titled spouse’s signature is required again.
Ending the Marriage
Once a couple ends their marriage, no Dower rights exist. You no longer need a Dower release. The marriage may end by divorce, an annulment or death. A separation does not end Dower rights, even if the couple has a separation agreement. Until the court grants a divorce, dower rights exist.
Lastly, a dower release also waived dower rights. In this case, the release serves to grant a waiver of Dower rights unless the Dower release is revoked. In most instances the spouse registered on title registers the Dower release at the Land Titles Office.
What Is A Dower Release?
The actual Dower release is a document that you sign with a lawyer. The release includes an Affidavit in support of Dower release. Since the document registration applied to a single title to land, it only works for one specific property. If rights apply to multiple properties, each requires its own document. In the affidavit, the spouse releasing Dower rights swears that:
- They are the spouse of the property owner;
- Their spouse owns a specific property;
- They are aware that the Dower Act gives them a life estate (and other rights) in the property;
- The signing of the Dower release is for the purpose of giving up their Dower rights to the property; and lastly
- They are executing the release without pressure or duress of their spouse. That they do so freely.
When A Dower Release Is Needed
Most uses of these documents relate to convenience. If one spouse works far away or spends a lot of time overseas, the release registration on title avoids needing the non-titled spouse to attend at a lawyer’s office. In other instances, the non-title spouse claims no interest in a particular property and allows the free granting of interests as it relates to that property. Lastly, when a couple separates, often each person has their own home. In this case, the often mutually release one another from the other person’s home.
How Expensive Is A Dower Release?
A Dower release is an inexpensive document. This remains true even if factoring the cost of the actual registration at the Land Titles Office.
How Long Does It Take For A Dower Release?
At Kahane Law Office, we often provide Dower releases on the same or next day. In some instances, they are drafted and signed within an hour. While we prefer an appointment for these services, drop in appointments occur but may involve waiting a little for the drafting and a lawyer to sign.
Consequences Of A False Dower Affidavit
The consequence of swearing a false Dower affidavit is severe. A false affidavit or otherwise attempting to avoid a spouse releasing rights, may lead to an award against the titled spouse of half the value of the home. Not half the equity in the home but half the value. Please exercise caution if considering this approach.
Real Estate Lawyers For Dower Releases
At Kahane Law Office, we know real estate. Our real estate lawyers help you understand your rights, obligations and options. Call, email or schedule an appointment today. Feel free to email. We love questions and answer many questions at no cost to you. Please email us directly here. Alternatively, feel free to call us 403-225-8810.