The Dower Act: What Alberta Sellers Need to Know Before Selling

Alberta’s Dower Act says a married person cannot dispose of their homestead without their spouse’s written consent or a court order dispensing with it, even when the home is in one name only. In a sale, the spouse signs a consent and makes a separate acknowledgment and the buyer’s lawyer checks that it is in order before the transfer is registered. This post is general information from the King’s Printer text of the Act and a lawyer decides what applies to your sale.

What the Act requires

Section 2 of the Dower Act says no married person shall make a disposition of the homestead by an act during their lifetime, whereby any interest will vest in another person, unless the spouse consents in writing or the Court has made an order dispensing with the consent. Section 1 defines disposition to include a transfer, an agreement for sale, a lease for more than three years and a mortgage or encumbrance. That means a sale, a long lease and a mortgage all come within it.

A homestead, in the Act’s words, is a parcel on which the dwelling occupied by the owner as a residence sits. In a city, town or village that is up to four adjoining lots in one block. Outside a city, town or village it is up to one quarter section.

The consent form and the acknowledgment

Two separate things happen when a spouse signs.

1. The consent. Section 4 requires a consent in the prescribed form stating that the spouse consents to the disposition of the homestead and signs to give up the life estate and other dower rights to the extent needed to give effect to the disposition. It is contained in or attached to the instrument and it is produced for registration with that instrument at Land Titles.
2. The acknowledgment. Section 5 requires the spouse to acknowledge apart from the married person that they understand the nature of the disposition, that the Act gives them a life estate in the homestead and a right to withhold consent, that they consent to give up those rights as needed and that they sign freely and voluntarily without compulsion. A certificate of acknowledgment in the prescribed form goes on the document.

The Act allows the acknowledgment to be made before a person authorized to take proof of execution under the Land Titles Act. A lawyer normally arranges this in Alberta, which is why the paperwork usually passes through a lawyer’s office.

Why the buyer’s lawyer checks it

Section 4(6) tells the Registrar of Land Titles that, when a disposition does not purport to be consented to and has no court order, an affidavit from the owner in the prescribed form is required. Alberta’s Land Titles transfer information also lists accepted dower evidence on the transfer: a consent and acknowledgment by spouse, a dower affidavit, a release of dower rights or a court order dispensing with dower. A buyer wants the transfer to register without trouble, so the buyer’s lawyer reviews which of these accompanies it.

The risk is on the seller’s side too. Section 2(3) makes a disposition in breach of the section an offence, with a fine of up to $1,000 or imprisonment of up to 2 years. Section 1 also lists a right of action for damages against the married person for a disposition made without consent that results in the title being registered in another person’s name.

Exceptions and other routes

Situation	What the Act says
Spouses are joint tenants or tenants in common	Section 25(2): signing the disposition is consent for each and no acknowledgment is required
Married person owns with someone other than the spouse	Section 25(1): the Act does not apply to that land
Spouse has released dower rights	Section 7: a release is signed apart from the owner before a lawyer who does not act for the owner, supported by an affidavit
Consent cannot be obtained	Section 10: application to the Court for an order dispensing with consent

Section 10 lists the situations for a court application, including spouses living apart, a spouse who has not lived in Alberta since the marriage, a spouse whose whereabouts are unknown, a married person with two or more homesteads, a written agreement for valuable consideration releasing dower and a spouse who lacks capacity in the circumstances the section describes. This is a legal process with notice rules and a lawyer must handle it.

A release is a lasting document. Under section 3, land stops being a homestead when a transfer is registered or when a release is registered. Alberta’s fee schedule lists a Release of Dower Rights at $25.

What this means for timing

A seller who is married and holds title alone should raise this with a lawyer before listing, since arranging a spouse’s acknowledgment, a release or a court order takes time and may involve more than one person. A separated couple has a harder path, because the spouse still has rights and the consent still has to be given or dispensed with. Do not sign a purchase agreement for a home you own alone without telling your lawyer that you are married.

The Act is about the homestead of a married person. Other rules cover other situations, such as an estate sale, a sale after a separation or a sale where an adult interdependent partner is involved. Those fall outside this post and the right person to explain them is a lawyer.

Where to go next

The sellers page sets out how a sale proceeds from listing to possession. If you are selling a home that belonged to someone who has died, the estate home selling guide covers the different questions that arise. Derek Bryer is a licensed associate with eXp Realty, not a lawyer, so he will ask whether a lawyer has your title and marital situation in hand before you list. You can contact Derek on 587-325-2992.