The Gazette 1979

GAZETTE

SEPTEMBER 1979

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

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.

— Supreme Court (per

Henchy J. with Kenny and Parke JJ.)

—

8th

October,

1979

—

Unreported.

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.

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

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".

The Court referred with approval

to the principles of statutory

interpretation laid down by Lord

Reid in

Luke

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.

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.