Marriage and real estate in Alberta: What you need to know about dower rights

When selling, buying or mortgaging property in Alberta, one often-overlooked issue is dower rights. These rights can complicate real estate transactions if not addressed early. Dower rights exist on the home when only only one spouse is on the home title. The spouses must be legally married. Dower does not (yet) apply to adult interdependent partnerships ("AIPs" for short; commonly known as common-law).

Here are some common scenarios in real estate deals. Also view one of the official forms that we follow in these scenarios to meet dower requirements.

Example 1: The happy homeowners

You’re married, living together but only one of you is on title. It is time to sell and move into your next home together. Dower applies. The spouse who's not on title will need to sign within the sale contract with the realtor and within the transfer of land with the real estate lawyer before closing.

Example 2: The long distance couple

You’re happily married but living in different provinces from your spouse for work purposes. Only you are on title; not your spouse. The long-distance spouse occasionally returns home to visit. You’re selling your Alberta home. Dower applies. The spouse who's not on title will need to sign within sale contract with the realtor and within the transfer of land with the lawyer to complete the sale.

Example 3: The separated spouses

You've separated, but aren't yet legally divorced. You had purchased your own home after the separation. A few years have passed and now you want to refinance your home. Your spouse has never lived in the property - heck, the spouse doesn't even know about the property. Dower applies. Both spouses likely need to sign in a couple spots to complete the new mortgage.

Example 4: The long-ago separation

You’ve been separated from your spouse for decades, no divorce order, and your ex hasn’t set foot in the home. Dower still applies. The "ex" spouse will need to sign within the sale contract with the realtor and within the transfer of land with the lawyer before the sale can close.

What are dower rights?

Under Alberta’s Dower Act, a married person cannot sell, mortgage, or otherwise dispose of their homestead without the consent of their spouse even if that spouse isn’t listed on the land title. A homestead is typically the family’s primary residence.

Dower takes its roots from Alberta's farming history. The purpose of dower is to protect married spouses from being unfairly deprived of their home. But from a legal and practical standpoint, dower rights mean land owners can’t complete certain land transactions without first dealing with dower.

How to address dower rights in a real estate transaction

There are three main ways dower rights are dealt with in Alberta:

1. Dower consent on instruments

If you remain married (whether separated or together), your spouse must provide Dower Consent each time an instrument affecting the homestead is registered. This includes, and is not limited to:

• Sale contracts

• Transfers of land

• Mortgages

  
  

The non-title holder spouse will be asked to sign a Dower Consent and Acknowledgment on the instrument acknowledging they understand the rights being waived for that transaction.

2. Dower release registered on title

Another option is to register a Dower Release on the land title. The release is a formal document signed by the non-title holder spouse permanently releasing their dower rights. Once registered, future land dealings (sales, mortgages, etc.) no longer require spousal consent.

This can be the cleanest long-term solution, especially where the property is not truly being used as the marital home or where spouses agree that dower protection isn’t needed.

3. Divorce (severing dower rights)

Once a divorce order is granted, dower rights are severed. This means that if you are no longer legally married, your spouse does not need to sign off on land transactions (unless there's a court order saying otherwise). Separation alone is not enough; A formal divorce order is required.

Why this matters

Real estate deals can be delayed or even collapse if dower rights are overlooked. Sometimes long-separated spouses come creeping out of the woodwork, like ghosts from the past, to haunt a transaction. Sometimes court applications are needed to deal with dower requirements.

Buyers, sellers, realtors and lawyers all need to ensure that dower rights are addressed before the closing / possession / financing date, and before documents are submitted to the Land Titles Office.

Dower law may be changing

The Alberta Law Reform Institute (ALRI) has issued its recommendations to the legislators about reforming dower requirements to align with modern society. Alberta's Dower Act may be reformed in the future.

Separation with no divorce can add a mess in the estate planning process too. More on that topic in another article.

---

This information is intended to be general only. Analysis of dower is fact-specific to each client's legal situation. Before taking any action involving your personal circumstances, you should consult with a lawyer to ensure it is appropriate to your situation.

Reading or responding to this article in any shape or form doesn’t create a solicitor-client relationship.

External links are for your ease of reference, and not endorsements or fulsome.