"...married or not, the
provisions of the Dower Act need to be addressed...."
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 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 These common law rules no longer apply and have been
replaced by the Dower Act.
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 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
dispositions which are covered by the Dower Act.
fall within the Dower Act, in that there is a "disposition" of the
"homestead", then you must comply with the Dower Act either by:
1. both Husband and Wife
signing the disposition;
2. obtaining the consent of your spouse by
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
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.
3. 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;
4. 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".
four main ways to deal with the Dower Act, if it applies:
Both Husband and Wife sign;
Consent of your spouse;
3. Affidavit; or
4. Release of Dower Rights.