There are a lot of things to think about when listing your home for sale. But one thing you may not have considered (at least until your Realtor pulls out the paperwork) is that under the Dower Act of Alberta, you may need your spouse’s permission to sell your home. This is called Dower Consent.
What is Dower Consent?
The Dower Act is provincial legislation that prevents a married person from selling (or disposing of) a home without their spouse’s consent. In order to “dispose of” the property (list, sell, or transfer title), the non-owner spouse must show that they agree to the disposition. There are several ways to do this, one of which (and common for real estate transactions) is by signing the contract, and then also signing a Dower Consent and Acknowledgement form in the presence of a lawyer or Commissioner for Oaths. This ensures they understand the rights they are giving up.
When is Dower Consent needed?
For real estate transactions, Dower Consent is only required if ALL 3 of the following apply:
The seller is legally married; AND
There is only one registered name on title; AND
Either the seller or the non-owner spouse has resided on the property at any time since the marriage. “Resided” on the property may mean that either one of them (not both) spent just one night.
Dower consent only applies to legally married couples, so it doesn’t apply to common-law relationships but it is required if a couple is separated but not legally divorced, no matter how long ago the separation occurred.
In a real estate transaction, Dower Consent may be required 3 times:
At the time of listing the home for sale;
When an offer is accepted;
When title is transferred (will be done with your lawyer).
Potential problems
Most times, obtaining Dower Consent is not an issue. There are many reasons why a married couple may choose to register the family home under just one name and for them, obtaining Dower Consent is a simple process. But if you’ve been separated from your spouse for a long time and don’t know where they are, or you don’t have an amicable relationship, it’s important to know that Dower Consent is required and that not providing it can result in a voided purchase contract, delays in the sale, or potentially expensive legal issues down the road. Be open with your Realtor when they ask you about Dower at the time of listing your home, and if needed, talk to a lawyer about your options if you have concerns about obtaining Dower Consent for your specific sale.
