The Gazette 1994

GAZETTE

NOVEMBER 1994

National Irish Bank Ltd v. Robert

Graham, Sarah Graham, Eric Samuel

Graham, Charis Graham and Robert

George Graham: High Court (Costello

J) 8 November 1993

Real Property - Purchase of land - Execu-

tion of deed of mortgage by purchasers prior

to taking possession - Whether interest in

family home conveyed by means of deed of

mortgage - Need for residence by spouses

before dwelling can constitute family home

- Family Home Protection Act 1976, ss. 2,

Facts On 29 August 1989, the first,

third and fifth named defendants pur-

chased a large estate of approximately

3,000 acres with the aid of a loan

granted by the plaintiff. The loan was

secured by a deed of mortgage dated 9

August 1989 which had been executed

by the first, second, third and fifth

named defendants and their solicitor

who had purchased the property in

trust for them. At this time the first and

second named defendants were mar-

ried to each other, the third and fourth

named defendants were married to

each other and the fifth named defen-

dant was unmarried. However, the lat-

ter got married on 17 November 1990.

None of the mortgagors obtained pos-

session of the land until after comple-

tion of the purchase and execution of

the mortgage. On 21 February 1991 the

mortgagors, with the consent of the

plaintiff, transferred some of the land

between themselves and executed three

further mortgages in favour of the

plaintiff. The mortgagors defaulted in

repayment of the loan and the plaintiff

sought an order of possession so that it

could exercise its power of sale under

the first mortgage. The defendants

claimed that the four mortgages were

void under s. 3 of the Family Home

Protection Act 1976.

Held by Costello J in making an order

for possession but excluding certain

parts of the land which were subject to

contracts of sale entered into with the

plaintiff's consent: (1) A house becomes

a family home within the meaning of s.

2 of the 1976 Act only when a married

couple take up residence. There was no

basis for interpreting the definition as

including a dwelling in which a mar-

ried woman intended to reside at the

date of its purchase. (2) At the time

when the first mortgage was executed

four of the mortgagors were spouses

within the meaning of s. 3. However, as

none of the mortgagors were in posses-

sion of the land when they executed this

mortgage none of them could be re-

garded as having conveyed an interest

in a family home by means of this deed.

Thus there was no need for the prior

consent in writing of any of their

spouses and the mortgage was not void

under s. 3. (3) The equitable interest of

a purchaser which arises prior to com-

pletion by virtue of a contract for the

sale of land could not be regarded as

having transformed any dwelling on

the land into the family home of either

the third or fifth named defendant so as

to confer rights on their wives before the

taking of possession. (4) The existence

of unresolved disputes in respect of the

second, third and fourth mortgages did

not affect the validity of the first mort-

gage or the plaintiff's right to exercise

the power of sale arising thereunder

and seek an order of possession so as to

enforce that right.

Reported at [1994] 1 ILRM 372

Anthony Lowth and Others v.

Minister for Social Welfare and the

Attorney General: High Court 1989 No

9622P (Costello J) 16 December 1993

Constitution - Equality - Social welfare -

Deserted wife's benefit - Whether deserted

husbands were entitled to same benefits and

allowances as deserted wives - Social Wel-

fare (Consolidation) Act 1981 - Constitu-

tion of Ireland 1937, Articles 40.1, 41.2 -

Council Directive 79/7/EEC

Facts After being deserted by his wife

the plaintiff had to give up his employ-

ment so that he could look after their

two young children. His entitlement to

unemployment benefit lasted for a pe-

riod of

390

days. Thereafter he was paid

unemployment assistance and on 20

November 1991 he qualified for lone

parent's allowance. Unlike the deserted

wife's benefit payable under the Social

Welfare (Consolidation) Act 1981, the

allowances to which the plaintiff be-

came entitled were means tested. Fur-

thermore, the payments made in favour

of the plaintiff were at rates lower than

the rate which would have been pay-

able to a deserted wife in circumstances

similar to those of the plaintiff. The

plaintiff claimed that as he and his chil-

dren had received less income than

would have been received by a deserted

wife and her children, he had been dis-

criminated against by reason of his sex

contrary to Council

Directive

7 9 / 7 / EEC and that insofar as the 1981

Act made provision for deserted wives

but not for deserted husbands in similar

situations it was unconstitutional.

Held by Costello J in dismissing the

plaintiff's claim: (1) A benefit or allow-

an:e only came within the scope of

Council Directive 7 9 / 7 / EEC if it consti-

tuted the whole or part of a statutory

scheme which protected against the risk

of sickness, invalidity, old age, acci-

dents at work, unemployment or was a

form of social assistance having the

same objective. As the deserted wife's

benefit did not constitute a form of so-

cial assistance falling within the scope

of the directive, it did not apply to the

impugned provisions of the 1981 Act.

(2) Article 40.1 of the Constitution does

not guarantee that all citizens will be

treated equally in all circumstances. In-

equalities in the law may be permissible

provided that the inequality flows from

or is related to a difference of capacity,

physical or moral, or to a difference of

social function.

Quinn's Supermarket

Ltd. v. Attorney General

[1972] IR 1 con-

sidered. (3) A legislative inequality will

not be set aside as being repugnant to

the Constitution unless the court con-

siders that the law is based on a distinc-

tion between men and women which

cannot be justified by the factual cir-

cumstances.

Murphy v. Attorney General

[1982] IR 241 and O'G.

v. Attorney Gen-

eral

[1985] ILRM 61 considered. (4) The

Oireachtas was entitled to conclude on

the facts as established that married

women fulfilled a social function differ-

ent to that of married men and further

that married women who were de-

serted by their husbands required

greater income support than married

men who were deserted by their wives.

The distinction made in the impugned

legislation was not based on any as-

sumption that deserted husbands were

to be treated as in some way inferior to

deserted wives, but was founded on a

factual assessment by the Oireachtas of

the greater needs of deserted wives. The

Oireachtas, in the light of Article 41.2 of

the Constitution, which recognised the

special role of wives and mothers in

Irish society, was not acting unreason-

ably when it sought to give special fi-

nancial support to deserted wives who

were also mothers.

Dennehy v. Minister

for Social Welfare,

High Court (Barron J)

26 July 1984 applied.

Reported at [1994] 1 ILRM 376