Although historically the purpose of the Dower Act was to provide an interest in land, and some protection thereby to farmwives, whose husband’s had the entire farm, including the land on which the home was located, registered in only their names alone, practically speaking, the Act also applies to and continues to affect residential real estate transactions within the city.

In the case where title to the home is registered only in the name of one spouse, and the parties have actually resided at the home as a legally married couple, the “owner” spouse cannot sell or mortgage the home without the written consent, in proper form, of the non-owner spouse.

This requirement can cause difficulties where spouses have separated, but have not divorced, as in that situation the consent of the non-owning spouse, who may have left the home, is nevertheless still required in order for the owning spouse to sell or mortgage the home.

In one case in which I was involved, the spouses had separated years earlier, had divided their property, and the non-owner spouse had subsequently moved from the province. When the owner spouse later sold the property, he discovered that he was nevertheless still unable to transfer the title to the purchaser without consent of the non-owner spouse, who by virtue of the Dower Act still had a dower interest in the home. Unfortunately, the non-owner spouse could not be located, and the required dower consent could not be obtained. A Court Order, extinguishing the non-owner’s dower rights was required in order to complete the sale, at significant extra cost to the seller.

It is possible to avoid the above situation by having each spouse, on separation, execute a Dower Release, releasing any dower rights that may exist, and then registering the releases on title to the affected property. Failure to register the release on title at the time of execution may also cause difficulties, as the release may be lost, and not available when required.

Alternatively, a Judgement of Divorce will also extinguish any dower rights that each spouse may have in the other’s property.