The Dower Act: Rights and Responsibilities
Many people enter marriage without a full understanding of the rights and responsibilities it affords. One of the little-discussed rights that comes along with marriage, at least for people residing in Alberta, are dower rights.
Not to be confused with “dowry”, dower rights are the rights of a non-owning spouse with respect to the real property of their spouse. Specifically, dower rights empower a married person to the following in respect of their spouse’s property, even if they are not an owner of that property:
- The right to prevent disposition (transfer, sale or mortgage) of the property; and
- The right to a life estate in the property following the death of their spouse.
These rights are only applicable when the property in question qualifies as a “homestead” as defined in the Dower Act, which requires that one or both spouses have resided at the property since marriage. Dower rights are only terminated upon divorce and apply to properties even if acquired after a couple has separated.
When disposing of a home or property, every individual is required to swear an Affidavit stating that they are either not married, or if married, that neither spouse has resided at the property since marriage. If neither applies, then the person intending to dispose of their property must have their spouse sign a waiver of dower rights in respect of the property before the disposition occurs.
Generally, there is little in the way of checks and balances to ensure that spouses are not falsely swearing affidavits stating they are unmarried or that neither they nor their spouse have resided in the property since marriage. For that reason, fraud in this context is a real issue with very real consequences for the offending party, including being hit with damages for either half of what they received to dispose of the property, or half of the value of the property at the date of disposition, whichever is greater.
In Joncas v Joncas, 2017 ABCA 50 the Court of Appeal considered the issue of whether the husband, who had disposed of property and falsely sworn and an affidavit stating neither he nor his spouse had resided in the property since marriage, was liable to pay his wife half of the net sale proceeds he received (approximately $60,500) or half of the value of the property ($162,500). The Court confirmed that pursuant to the Dower Act, the husband was liable to pay the wife half the value, notwithstanding it far exceeded the actual sale proceeds.
Joncas is a cautionary tale at the heart of which is the message that you should carefully consider the issue of dower rights both before, during, and after your marriage.