When you enter a marriage, it’s about more than a legal arrangement. It’s a life of togetherness. What’s theirs becomes yours; what’s yours becomes theirs—or so it seems. But when the marriage falls apart, or when a spouse dies, it’s suddenly not that simple anymore. What are you entitled to if your spouse is the only one on the title to the property?
In this post, we’ll explore what the law in Alberta says about the division of property after divorce or in the event of a spouse’s death, including what you’re entitled to, even if you’re not on the property title.
What Does Alberta Law Say About The Division Of Property After Divorce?
In Alberta, the Family Property Act governs the division of property after divorce. The Act defines “property” as all property that’s:
- owned by one or both spouses,
- was acquired during or after the marriage, and
- was used for one or both spouses (or their children).
This includes the “family home”.
Family property is divided equally and fairly in Alberta courts, except when unequal division is more fair because of special circumstances.
Alberta courts consider the following factors when deciding on the division of family property:
- The length of the marriage
- The contribution of each spouse to the marriage, including parenting and homemaking duties
- The financial situation of both spouses
- Tax liabilities of transferring or selling property
- Any other agreements between spouses
- Any Court Orders against each spouse
Because your family home is included in the family property according to Alberta law, even if you’re not on the title to the property, the courts could decide that you have a right to the property.
The Dower Act
In 1917, Alberta legislated the Dower Act to ensure a widow has a place to live after her husband dies. Although the Act has changed significantly over the years, it’s still in effect today to protect the rights of a spouse who is not on the title to the property—their home and its contents.
The Dower Act affects wills, estates, the division of family property, and all real estate transactions in Alberta. It applies to both husbands and wives before and after the death of a spouse, and includes only a single residence with only one person on the title. If the marriage ends by divorce or annulment, dower rights no longer apply.
What Am I Entitled To Under The Dower Act?
Under the Dower Act, if your spouse was the registered owner of the home, you are referred to as the “dower spouse”, and your rights to the home you lived in with your spouse during your marriage are divided into two key elements.
1. Consent to Disposition
Your spouse cannot refinance, sell, or lease your home for more than three years without your consent. If they do, you have a right to sue them. However, there is also protection for the owner spouse. The dower spouse may not withhold consent unreasonably.
2. Life Estate
Even though you’re not on the title to the home, you have a life estate interest in the home if your spouse dies, no matter what is in their will. This allows you to live in or use the home for your lifetime, even though you don’t own the property. You may not sell it or keep the sale proceeds, and you may not give the home to someone else after your death.
Put simply, you have the freedom to live in the home as long as you want to, but you do not have the freedom to sell it or give it to someone of your choice.
Does My Spouse Need My Consent To Sell The Property?
Yes. Your spouse must have your consent to sell the home, unless the property is exempt from the Dower Act.
Whenever someone gets a mortgage, sells land, or makes any other real estate transaction, the property owner is required to present documentation that shows the dower spouse’s consent to the transaction. If the property is exempt from dower rights, the property owner must submit an affidavit to prove that.
You can, however, voluntarily give up—or release—your dower rights. This simply gives up your right to a life estate and gives your consent to your spouse to refinance, sell, or dispose of the home. Releasing your dower rights does not give up your rights to equity in the home.
Releasing your dower rights requires official documentation signed with a lawyer.
If you refuse to give your consent to sell the property, your spouse may apply for a Court Order to waive the need for your consent. If the court judges your refusal to consent unreasonable, your spouse may be allowed to sell the property without your consent.
If your spouse illegally sells the property without your consent, they may be liable to pay you half of the sale proceeds or half of the value of the property. Your spouse may also face criminal sanctions.
Legal Help for Your Property Entitlement
Do you have concerns about your rights to property owned by your spouse? Does your spouse want to sell your family home without your consent? Do you have questions about dower rights? The real estate lawyers and family law lawyers at Getz Collins and Associates can help. Contact us for legal advice about your entitlement to property.