What has to be signed before a separating couple's house can close

If both of you are registered owners, both of you sign the transfer, and if only one of you is on the title, that one signs and the dower paperwork still has to come with it, because Alberta's Dower Act runs right through a separation and ends only at divorce. What a separation adds on top is the set of documents either of you can register against the title, and the land titles office is particular about which of them it will take.

Search this and the results split cleanly down the middle, with family lawyers writing about how property gets divided and stopping before the sale, and Realtors writing about how to list and stopping before the consent that decides whether a sale can close at all. Between them almost nobody publishes a form name, a registry fee or a filing step.

Land Titles will not register the transfer without the dower paperwork

The Government of Alberta publishes an information sheet for a Transfer of Land that says what the registry needs, and it reads as a list of alternatives: "If dower requirements apply; if there is only one current owner on the property, you will need one of the following:" followed by a Consent and Acknowledgement by Spouse, a Dower Affidavit, a Release of Dower Rights and Affidavit in Support of Dower Release, or a Court Order Dispensing with Dower. Without one of them the transfer does not register, so a closing date with no dower document behind it is a closing date that will move.

A buyout between the two of you is lighter still. The Dower procedure in the manual the registry staff work from says "Compliance with the Dower Act is not required where there is evidence which confirms that the spouse of the transferor is the sole transferee." The spouse keeping the house does not consent to a transfer into their own name alone. What consent looks like when it is needed, and who has to witness it, is in the consent form and the signings it takes.

Then come the limits, and the first one is the part the firms writing about division leave out. Section 10(1) of the Dower Act, as the Alberta Law Reform Institute quotes it, lets "A married person who wishes to make a disposition of the married person's homestead ... when the married person and the married person's spouse are living apart" apply "to the Court for an order dispensing with the consent of the spouse". Living apart is not an obstacle to that application, it is one of the grounds for it, and the registry treats the result as the consent itself: a disposition "accompanied by either a certified copy of the order or a FIAT is registered in the same manner as if the spouse of the married person had consented to the disposition."

Selling without either is costly in a way the statute spells out. Section 11 makes an owner who disposes of the homestead without consent "liable to the spouse in an action for damages", at "1/2 of the consideration for the disposition" or "1/2 of the value of the property at the date of the disposition", "whichever is the larger sum", and commentary from the University of Calgary Faculty of Law notes the remedy runs against the seller rather than undoing the sale. Ask your own lawyer before signing anything.

Dower is also only for married people, and the Alberta Law Reform Institute puts its end point plainly: "Dower rights apply during a marriage and end upon divorce." Which rights attach to which parcel is in dower rights and the three tests.

What either of you can register against the title, and what each one does

People reach for a caveat because it is the word they have heard. The Caveats procedure lists the interests that cannot be registered that way, and a family property claim sits on that list, routed elsewhere in the same breath: "claim under the Matrimonial Property Act (to be registered by way of certificate of lis pendens)". The manual is still using the Act's old name, six years on.

The instrument it points to is authorised by the Act itself. The Certificates of Lis Pendens procedure says the right to register one "is wholly statutory" and is "expressly authorized by ... section 35 of the Family Property Act", and that a certificate "merely places on record the historical fact that litigation is pending in respect to a particular parcel of land". Notice, in other words, rather than a padlock. The Centre for Public Legal Education Alberta describes the effect from the other end, that a certificate "lets potential buyers or lenders know there is a dispute about the property" and "usually restricts the sale of the property."

The prices are worth knowing because they are so small. Alberta's common documents fee schedule, updated effective October 20th, 2024, charges $10 to register a certificate of lis pendens and $35 for a caveat, so the cheaper document is the one that works and the dearer one is the one the registry will refuse.

The heavier instrument is an order for exclusive possession of the family home, which comes from section 19 of the Family Property Act with the factors the Court weighs in section 20. The Centre for Public Legal Education Alberta makes its reach clear, that "You can apply if you rent or own your home, even if your name is not on the lease or title of the home." The application goes to the Court of King's Bench and the Government of Alberta states the fee: "The application fee is $200." Registration is what connects it to the land, and the Alberta Law Reform Institute, citing section 22, says the order can then be registered with the land titles office. Once it is, in the Centre's words, "While the order is in place, you and your spouse or partner both must consent to selling the home."

Where a sale has already happened there is a short deadline attached. The Centre for Public Legal Education Alberta writes that "You must ask the court for help within one year after the date the other person transferred or sold the property." Nobody we read states which provision sets that year, so treat it as a reason to get advice quickly rather than as a date to plan around.

The value being divided is the one at the trial, not the one on the day you separated

The Act was renamed and given a new valuation rule at the same time. The Government of Alberta's page on the changes says they "rename the Matrimonial Property Act the Family Property Act", that they "apply to both adult interdependent partners as well as spouses", and that "The following changes will come into force on January 1, 2020."

Writing on ABlawg, the University of Calgary Faculty of Law blog, Laura Buckingham quotes the provision Bill 28 added: "Unless a written agreement by the parties that meets the requirements set out in section 38 provides otherwise, the relevant date for valuation of property to be distributed under this Act is the date of the trial." The Centre for Public Legal Education Alberta gives the working version, that "a justice looks at the value of the property on the trial date or the date of the final order, whichever comes first."

Here is the arithmetic nobody on that results page does. Most of the country values family property as of separation, and the Alberta Law Reform Institute says so directly, that "the majority of Canadian jurisdictions value matrimonial property as of separation rather than trial." In those provinces the number stops moving the day the relationship ends, and waiting costs time alone. In Alberta it keeps moving, so every month the house sits unsold is a month both of you stay exposed to whatever the house does, and the one who moved out is carrying that exposure without living in the place. Delay is not a neutral position here, it is a position on the housing market that neither of you chose and neither of you can close.

The one thing that stops the clock is an agreement, and it has conditions. The Centre says that with one "you can decide if you are going to use the value of the property at the date of separation or a different date", and the Alberta Law Reform Institute sets out what the Act asks of it, that "The agreement must be reduced to writing" and that "Each spouse must receive independent legal advice regarding the agreement."

The tax is usually nothing, and the exemption has a condition people miss

Start with the easy half. CRA's info sheet on sales by individuals of owner-occupied homes says "Sales of used owner-occupied homes are usually exempt" and explains why: "In most cases, the GST/HST does not apply to the sale of an owner-occupied home since the owner is not a builder."

The harder half is the principal residence exemption, and the condition sits in one sentence. Income Tax Folio S1-F3-C2 says a family unit for the year includes "the taxpayer's spouse or common-law partner throughout the year, unless the spouse or common-law partner was throughout the year living apart from, and was separated under a judicial separation or written separation agreement, from the taxpayer". Only one property in a family unit can be designated for a year, so that exception is what lets two people claim two homes. Moving out is not what the wording asks for. It asks for a judicial separation or a written agreement, and for the whole year, so a couple who separated in June with nothing signed does not obviously meet it.

None of this is tax advice, so put your own numbers in front of your own accountant before you decide whether to sell the house or transfer it to one of you.

When this is not the right move for you

If the house is in reasonable shape and the two of you can agree on a listing, list it. An open market with a Realtor will beat any direct offer including ours, and it beats it by more when there is time to let the house sit on the market properly. As Matthew puts it: "If your house is in good to great condition and you're not in a hurry, listing with a Realtor may be a better option, and I'll tell you so to your face."

If the real dispute is who gets how much, selling does not settle it and we are not the people to ask. We will not buy from one registered owner over the objection of the other, and we will not take a transfer the dower paperwork does not support, because the registry would not register it anyway.

Where a direct sale earns its place is narrow: the house needs work neither of you wants to pay for, or one of you has moved out and the carrying costs are the problem, or what both of you need most is a closing date to plan the rest around. What we pay is written out rather than implied, our four steps run as little as seven to ten days with two to three weeks more usual, and a house left empty or neglected through a long separation is the situation selling a damaged house in Calgary is written for. What a listing costs by comparison is in the cost of selling a house in Alberta.

Whatever you decide, pull the current certificate of title first, because whose name is on it and what is already registered against it settles which half of this page applies to you. Write to us if you want a read on the house itself while the lawyers work on the rest.