The Gazette 1979

SEPTEMBER 1979

GAZETTE

The Court referred with approval to the principles of statutory interpretation laid down by Lord Reid in Luke v. Inland Revenue Commissioners [1963] A.C. 557 at p. 577 as follows: "To aply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result. To - achieve the obvious intention and to produce a reasonable result we must do some violence to the words. This is not a new problem, though our standard of drafting is such that it rarely emerges. The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail". The order for specific performance of the contract was approved. N. v. M. and M. — Supreme Court (per Henchy J.) with Kenny and Parke JJ.) — 23 October, 1979 — Unreported. Summaries of judgments prepared by Laurence F. Branigan, John F. Buckley, Joseph B. Mannix, E. Rory O'Connor, Garrett Sheehan and edited by Michael V. O'Mahony.

High Court; nor was it suggested to the general practitioner that he or the consultant physician had been misled into a wrong conclusion as to the husband's impotence, and, therefore, as to the non-consummation of the marriage. The judge's note of the evidence amounted to an unrebutted and unquestioned case for the grant- ing of a decree of nullity. When reserved judgment was delivered, the judge rejected the wife's case and dismissed the petition stating that he was not satisfied that consummation had not taken place; that he was not satisfied as to the bona fides of the parties; also, that he had little doubt but that the parties had mutually agreed if possible, to have their marriage annulled; and that he considered the attitude of the husband was to assist the case, made by the wife; and that, in effect, he (the trial judge) held that he was not satisfied that the husband and wife had not acted collusively and had not given perjured evidence. The petitioner appealed to the Supreme Court. •Held (per Henchy J.) that having regard to the uninimity of the evidence given and the conduct of the case generally, it was not open to the trial judge to refuse a decree of nullity for the reasons he had given. Per Henchy J.: "It is not in accordance with the proper administration of justice to cast aside the corroborated and unquestioned evidence of witnesses, still less to impute collusion or perjury to them, when they were not given an opportunity of rebutting such an accusation". A decree of nullity was ordered by the Supreme Court on the grounds that the marriage was not consummated due to the husband's incapacity and that this was the only verdict open. M. v. M. — Supreme Court (per Henchy J. with Kenny and Parke JJ.) — 8th October, 1979 — Unreported.

The Defendants, who were husband and wife, held their dwellinghouse at Lucan, Co. Dublin, on a long lease as joint tenants. In July 1978, they both signed a contract to sell the house to the Plaintiff for £18,500. Subsequently the Defendants refused to complete the sale on the grounds that the contract was void under Section 3(1) of the Family Home Protection Act, 1976 ("the Act") as the wife had not consented to the sale in writing prior to the contract being signed. The Plaintiff brought proceedings for an Order for specific performance of the contract which order was granted by the High Court (Butler J.). The Defendants appealed to the Supreme Court. Section 3(1) of the Act provides as follows: "Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections (2) and (3) and Section 4, the purported conveyance shall be void". The Contract in question was a "conveyance" by reason of the definition in Section 1(1) of the Act and subsections (2) and (3) of Section 3 and Section 4 of the Act were not applicable. Held (per Henchy J.) that there was a flaw in a literal interpretation of Section 3(1) of the Act in that it assumed that it was intended to apply when both the spouses are parties to "the conveyance". The basic purpose of Section 3(1) was to protect the family home by giving a right of avoidance to the spouse who was not a party to the transaction, and it ensured that protection by requiring, for the validity both of the contract to dispose and of the actual disposition, that the non-disposing spouse should have given a prior consent in writing. Section 3(1) could not have been intended by Parliament to apply when both spouses joined in the "conveyance". In such event no protection was needed for one spouse against an unfair and unnotified alienation by the other of an interest in the family home. Per Henchy J.: "Section 3(1) is directed against unilateral alienation by one spouse. When both spouses join in the "conveyance", the evil at which the subsection is directed does not exist".

SALE OF LAND Family Home Protection Act, 1976 — Husband and Wife joint vendors — whether need for separate consent in writing of spouse where that spouse has already contracted to sell as joint vendor.

Made with