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Calgary Division of Increase in Exempt Family Property

Calgary Alberta Family Dower Rights can be tricky. In today’s article, Peter Graburn, MacLean law’s senior Calgary family lawyer explains Dower rights in Alberta.

Separation and divorce in Alberta involves many issues, including: parenting and financial support of children; financial support of spouses, and: division of family property. For most of these issues, married and Adult Interdependent Partner (AIPs, or so-called “common-law”) couples share the same rights and responsibilities. Except regarding the division of family property. And specifically regarding something called Dower rights.

Calgary Alberta Family Dower Rights 403 444 5503

For the longest time in Alberta, common-law couples did not have the same property rights as married couples. As I indicated in previous posts (see: Calgary Common Law Marriage Property Rights – ), prior to 2020, married couples generally divided matrimonial property equally under the Matrimonial Property Act. But the MPA did not apply to “common-law” couples, who had to fight to divide their family property under the somewhat convoluted legal concepts of constructive trust, unjust enrichment, quantum meruit and Joint Family Venture.

In January 2020, the Alberta Family Property Act was passed, which extended the same matrimonial property rights granted to married couples under the MPA to “common-law” couples. But did this extend all the same property rights enjoyed by married spouses to common-law spouses?  Unfortunately, no. There are two (2) types of property rights: ownership rights (those granted under the MPA and FPA) and possessory rights. Dower rights are possessory rights.

So what exactly are Calgary Alberta Family Dower Rights?

Calgary Alberta Family Dower Rights
Peter Graburn senior Vancouver Calgary High Net Worth Divorce lawyer 1-877-602-9900

What are Calgary Alberta Family Dower Rights

Dower (or possessory) rights to property have been around for a long time. Historically, under the common law, a married woman had a life interest in 1/3 of lands owned by her husband after his death (dower). Married men had a life interest in all lands inherited by his wife after her death, provided they had children who might be capable of inheriting the land (curtesy). A “life interest” did not give the spouse the right to sell the land, but only to use it (ie. live there) during their lifetime.

Dower Act 403 444 5503

In 1917, Alberta passed the Dower Act, which codified these historical common-law rights to give the surviving married spouse certain possessory (not ownership) rights in the “homestead” (being a ¼ section of farmland or 4 adjoining lots in a block in the city). Some say the legislation was intended to prevent the Husband from selling or mortgaging the farm that the wife had worked so hard to maintain.  Some say Calgary Alberta Family Dower Rights legislation was designed to protect the surviving Wife from the Husband’s creditors (ie. the Bank).

Simply put, Dower rights (under the Alberta Dower Act) are the rights granted to a married spouse who is not a registered owner of the matrimonial home to:

► remain in the matrimonial home after the death of their spouse;

► be required to consent to the sale or mortgage of the matrimonial home by their spouse, and;

► sue their spouse for damages if the matrimonial home is sold without their consent.

Calgary Alberta Dower Rights and Common-Law Couples Warning!

So, as can be seen from the above, married couples in Alberta have statutorily guaranteed ownership rights (under the FPA) and possessory rights (under the Dower Act) to land. While common-law couples in Alberta now have the same ownership rights to property as married couples (under the FPA), they do not have the same possessory rights to property, as the Dower Act only applies to married couples. Common-law couples in Alberta do not have dower rights, so do not have the same long-standing rights and protections as married spouses in this regard. What’s up with that?

But more importantly, what are the legal ramifications of this? Specifically, while a married spouse must obtain the consent of his spouse to the sale or mortgage of the matrimonial home if their spouse is not registered on title (or suffer the financial consequences), a common-law spouse does not. All a common-law spouse has to do is swear an affidavit that they are not married (which is true!) to sell the matrimonial home and take the sale proceeds. The unregistered common-law spouse would need to chase the registered spouse for their ½ of the sale proceeds (or get those proceeds from other family property, if that exists). Wow!

Taking Quick Action In Common Law Relationships 403 444 5503

What can a common-law spouse do to prevent this? The only option (if the spouse does not agree to share the proceeds of sale of the family home) is file a Statement of Claim for the division of family property under the FPA and register a Certificate of Lis Pendens (CLP, or lien) on the property to register their claim of an ownership interest in the family home. And do it quickly, before the house sells.

In our previous articles, we noted that the passing of the Family Property Act (FPA) in Alberta in 2020 was a significant step in equalizing the rights and responsibilities of married and common-law couples in Alberta to property – a real “game-changer” that brought Alberta in line with the modern reality that many couples simply choose not to marry.  But while the extending of certain property rights of married couples to common-law couples in Alberta under FLA was clearly a significant step, it did not extend all those property rights to common-law spouses, specifically Dower rights.

Some provinces have done away with their dower legislation. Some recommend replacing the Dower Act with new legislation that provides the same rights to married spouses and AIPs (see: Dower Act, Final Report 118, Alberta Law Reform Institute, September 2022).

But in the meantime, what are AIP (“common-law) spouses to do to protect their unregistered interest in the family home? My advice: Run (don’t walk) to the Land Titles Office to register a CLP on title.

Contact us if you have concerns over Calgary Alberta family Dower Rights.