The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

and wife, must one ask to see their marriage certifi- cate? No doubt it wiJl be a question of fact in each case whether the "purchaser" made such enquiries as the Court may consider reasonable in the light of the surrounding circumstances. The main difficulty in Section 3 of the Act arises from the use of the word "void" in Section 3 sub- section (1). To a lawyer this word has a very definite meaning: it means "of no effect whatsoever". If a vendor executes a void conveyance, the property re- mains vested in the Vendor (subject to any equity that the purchaser may have under a pre-existing contract). If the "Conveyance" in question is itself the Contract to sell, then both legal and equitable interest remain in the vendor. Having regard to this fact what is the meaning of Section 3, subsection 3(b)? This clause says thai a Conveyance shall not be void by reason only of subsection (1) if made, by a person other than the spouse making the purported Con- veyance referred to in subsection (1), to a purchaser for value. This seems completely illogical. In the first place, if the second Conveyance is made by a person other than the spouse in question it will not be made void, in itself, by subsection (1), which applies only to a Conveyance by the spouse. In the second place, if the Conveyance by the spouse was void, the person who purportedly took under that conveyance did not in fact acquire by it any estate or interest, since it was a void document. Having taken no estate or interest he has none to convey. The intention of the draftsman to the Act seems to have been to enable (for example) a person buying from a mortgagee, selling under his power of sale, to dispense with enquiries as to the validity (so far as Section 3 of the Act is concerned) of the mortgage. But if the mortgage was void then the mortgagee (or, rather, the purported mortgagee) has no interest in the land and no power of sale over it. Similar reasoning applies to Section 3, subsection (3) (c). These difficulties are made considerably worse by Section 3 subsection (4), which puts the burden of proving the validity of a Conveyance, by reason of subsections (2) or (3) of Section 3, on the person alleging it, and this "in any proceedings", whether or not the "other spouse" is a party to those proceedings. Let us consider the position of a solicitor acting for the purchaser of a dwellinghouse, or of a farm which includes a dwelling, ten years hence. There may have been several transactions on the title since the 12th July 1976. If any one of those transactions was void then the vendor to his client has no estate or interest in the property and what he has not got he cannot convey. It will be necessary to require proof, in respect oi each transaction, that all proper enquiries were made, with satisfactory results, and that no purchaser, mortgagee or lessee, has notice (personally or by his agent) of anything that might have prevented him from being a "purchaser in good faith". If the client buys the property and is subsequently engaged in any ligita- tion concerning it, no matter with whom, he has the burden of proving the validity of his Conveyance (which entails proving the validty of all prior trans- actions since the 12th July, 1976). Section 4 of the Act enables the Court to dispense with the consent of a spouse as required by Section 3, subsection 1, or to give consent on behalf of a spouse who is of unsound mind or cannot be found. It is not clear whether or not this can be done retro- spectively. Nor is it clear whether or not the consent of a spouse under twenty-one years of age will be

sufficient, or whether or not separate advice would be required in such a case. Section 12 of the Act provides that a spouse may reg'ster notice in the Registry of Deeds or Land Registry of the fact of his or her marriage, but that non-registration shall not give rise to any inference as to the non-existence of a marriage. This article is intended to deal only with those parts of the Act that most concern Conveyancers. It is clear that some amendments are urgently necessary in this connection. Accepting the principle that some protec- tion of a wife's right to occupy the family home is desirable, what sort of amendments are required? It seems unlikely that the Legislature intended that a man whose principal asset is his farm or his business premises should have to obtain his wife's consent to any sale or mortgage of this property, but this may be the practical result of the definition of "family home". It should be possible to except such properties from the definition, or to require the wife's consent only if a right of residence in the dwelling on the property is not reserved to the wife for her life (or during the joint lives of herself and her husband). It seems essential to alter the word "void" in Section 3, subsection (1), of the Act to "voidable at the suit of the other spouse" and to specify a short time limit within which application must be made to the Court to have the "Conveyance" de- clared void. The word "prior" might well be deleted from Section 3 subsection (1): Surely it will be sufficient if the wife consents in writing at any stage. But even if "void" is changed to "voidable" there remains the difficulty that neither a purchaser nor his bank will be willing to pay out a large sum on a voidable title, and if, for one reason or another, the consent of the other spouse cannot be got, there will have to be an application to Court for an order dis- pensing with consent or giving consent on behalf of an absent spouse or one of unsound mind. From a purchaser's point of view the most satisfactory solution would be a provision on the lines of Section 45 of the Land Act, 1965, whereby Section 3, subsection (1), would have no application to a "Conveyance" con- taining a Certificate by the Vendor, mortgagor or lessor that the prior consent in writing of his spouse had been given, or that he was not married, or that the property did not consist of or include a "family home" as defined by this Act: heavy penalties could be provided for giving a false certificate. There are two problems; first the question of what can be done to protect the wife (or, as the case may more rarely be, the husband) while also enabling a purchaser (mortgagee or lessee) to complete the original trans- action in a case where, so far as the purchaser is aware (although the facts are otherwise) the vendor (mort- gagor or lessor) is not married or no "family home" is involved; and, secondly, the question of whether subsequent purchasers should be burdened with the obligation of enquiring into the marital status, etc., of a succession of prior vendors or mortgagors. If "void- able" is substituted for "void" in Section 3, subsection 1, of the Act, and there is a fairly short time limit for an aggrieved spouse to apply to the Court to have the transaction set aside, after which it is no longer voidable, that should solve the second of the problems. Unless the suggestion of following the analogy of Section 45 of the Land Act, 1965, is adopted, it is difficult to see a satisfactory answer to the first problem, other than requiring the vendor, in all cases where

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