Historically, under the common law, wives and husbands enjoyed certain rights. For instance, dower was the right of a wife to a life interest, after the death of her husband, to one-third of the lands owned by the husband at any time during the marriage. Curtesy (n) was the right of a husband to a life interest, after the death of his wife, to all of the lands owned by the wife at any time during the marriage, provided they had children who might be capable of inheriting the lands.
These rights did not prevent either spouse from disposing of land, but any purchaser had to ensure that the rights were released if the purchaser did not want to be subject to the rights of the surviving spouse when the married person died. These common law rules no longer apply and have been replaced by the Dower Act.
The Dower Act is Alberta legislation which is applicable, in most instances, where a married person or their spouse is dealing with Real Estate. Various Forms are required to be used when dealing with Dower Act matters, which Forms are referred to below and are contained in the Dower Act Regulations.
One of the primary purposes of the Dower Act is to prevent a married person from disposing of the homestead without the consent of the spouse. Married person is not defined in the Dower Act, so in today’s world, it can be a preliminary issue as to whether the Dower Act applies or not, for if you are not a “married person”, then the Dower Act does not apply. A “homestead” is defined as “a parcel of land on which the dwelling house occupied by the owner of the parcel as his residence is situated”. If both names of the couple are shown as registered owners on the title, then the Dower Act does not apply, provided both parties execute the disposition.
The Dower Act sets out what are “dispositions”, however a transfer, agreement for sale, lease for more than 3 years and a mortgage are all common examples of dispositions which are covered by the Dower Act.
If you fall within the Dower Act, in that there is a “disposition” of the “homestead”, then you must comply with the Dower Act either by:
- both Husband and Wife signing the disposition;
- obtaining the consent of your spouse by completing the Form A – Consent or have an order of the Court of Queen’s Bench of Alberta dispensing with the consent of spouse. NOTE: the Form A – Consent cannot be completed by way of Power of Attorney;
If the Form A – Consent is used, then it must be accompanied by a Form C – Certificate of Acknowledgement of Spouse. This Acknowledgement must be made separate and apart from the other spouse before a Commissioner of Oaths who then signs it. The purpose of the Acknowledgement is to provide evidence that the consent was given voluntarily and free from influence of the owner. NOTE: the Form C – Certificate of Acknowledgement of Spouse cannot be completed by way of Power of Attorney.
If the Consent is on a separate form attached to the disposition document, then the consenting party should sign anywhere on the signature page of the disposition document and initial the separate pages. This was to provide clear proof that the consenting party was consenting to a specific document and could not at a later date claim that the Consent was attached to another agreement to which they did not consent.
- completing an Affidavit using the Form B – Affidavit, which must be sworn by the owner stating either that he is not married OR that neither he nor his spouse has ever resided on the property since the date of their marriage;
- obtain the release of your spouse’s Dower rights by completing the Form D – Release of Dower Rights. The Release of Dower Rights must be accompanied by a Form E – Affidavit in Support of Dower Release. If the Release of Dower Rights is executed by the non-owning spouse and registered at the Land Title Office, then the whole issue of Dower rights is over and dealt with respecting that property, allowing the registered owner to dispose of the homestead without having to comply with the Dower Act in the future. The land ceases to be the “homestead”.
There are four main ways to deal with the Dower Act, if it applies:
- Both Husband and Wife sign;
2. Consent of your spouse;
3. Affidavit; or
4. Release of Dower Rights.