Divorce and Dower Rights in Alberta
By Mat Wirove, Calgary family lawyer
Going through a divorce can create a number of issues that were never expected. Spousal support, child support, the division of matrimonial property and custody of children are generally areas that are known to those contemplating divorce or separation. However, there are other issues that most people have never heard of. Dower rights is one such issue that can arise when addressing the division of matrimonial property.
The Dower Act has been a part of Alberta law since 1917, and was put in place to protect spouses who are married to an owner of real property by giving the spouse who is not on the property title Dower rights to a homestead. A “homestead” is defined as the home where the married couple lived during the marriage. If in a rural area, the rights extend up to a ¼ section, and in the city the homestead cannot consist of more than 4 adjoining lots in 1 block. The average home in a city usually qualifies as a homestead under the Dower Act. A spouse can only have one homestead, so if more than one property could qualify, the spouse needs to choose which property they would like to take an interest in, but this of course could be contested.
Dower rights to a homestead grant the spouse who is not on the property title something called a “life estate” in the homestead. A life estate works to give the spouse who is not registered on title the choice to live in the homestead for the rest of their life if the spouse registered on title passes away. However, a life estate does not give any right to sell the property or give it to someone else as a gift, and if the surviving spouse moves out of the homestead the Dower rights are lost.
Today, the Dower Act also requires that the spouse who is not registered on title consents to any disposition or sale of that property which is a homestead. In plain language: if you were married and lived in your spouse’s home, your spouse cannot sell, or lease the home for more than 3 years, without your consent. Also, a spouse cannot leave the spouse who is not registered on title homeless by leaving their home to someone else in their will unless they have the written consent of the surviving spouse.
These rights are important for divorcing couples because they need to be dealt with before any transfer of real property in the matrimonial property division. During negotiations for the division of matrimonial property, spouses must ensure that they address their Dower rights to ensure that any transfer of real property can occur; without the proper forms dealing with Dower rights the Land Titles office will not permit the transfer of title for the land. These forms include the Dower acknowledgement which must state that:
- The spouse not on the title of the homestead is aware of the nature of the disposition;
- The spouse not on the title of the homestead is aware that he or she has a life estate in the homestead and has the right to disagree with the transaction;
- The spouse not on the title of the homestead consents to giving up his or her Dower rights; and
- The spouse not on the title of the homestead 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 and the spouse on title cannot be present.
Furthermore, after separation and during the divorce process, if the spouse who is the registered owner of the homestead attempts to sell or lease the property the Dower Act allows the Spouse not on the title of the homestead to challenge the disposition in Court. Conversely, should a spouse unreasonably refuse to consent to the disposition, then the spouse who is the registered owner can apply to sell or lease the property without the other spouse’s consent.
The issues surrounding Dower Rights during a separation or divorce can often be overlooked and this can create problems when selling real property. The Calgary family lawyers at Crossroads Law can provide advice and direction regarding matrimonial property and Dower rights. Contact us now to set up a consultation with a family lawyer.