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Family Home Protection Act, 1976.
The Family Home Protection Act, 1976, became law
the 12th day of July 1976. The purpose of the Act was to
prevent one spouse in whose sole name the family home is
vested from dealing with the family home over the head of
the other spouse in such a way as to deprive that spouse
of her home. The Act was principally aimed at the errant
husband who would be trying to sell or otherwise deal
with the family home over his wife's head, but, of course,
the converse would also be the case. The Act has a
number of conveyancing consequences which are of vital
importance to property Lawyers in that any
"Conveyance" within the meaning of the Act which is in
breach of the provisions of the Act since 12th July, 1976 is
void.
The Act is a short one and it is essential that the main
clauses of the Act should be carefully read. In particular,
for Conveyancing pruposes, the following definitions
should be noted:
(1) Conveyance is defined in Section 1 as "a mortgage,
lease, assent, transfer, disclaimer, release, and any other
disposition of property otherwise than by a Will or a
donatio mortis causa
and also includes an enforceable
agreement (whether conditional or unconditional) to make
any such conveyance and 'convey' shall be construed
accordingly". Where all or any of these documents relate
to a family home it is necessary to obtain the prior
consent in writing of the spouse as otherwise the proposed
document is void.
(2) A family home is defined in Section 2 of the Act as:
(0 "family home" means, primarily, a dwelling in which
a married couple ordinarily reside. The expression
comprises, in addition, a dwelling in which a spouse
whose protection is in issue ordinarily resides or, if that
spouse has left the other spouse, ordinarily resided
before so leaving.
(ii) In subsection (i) "dwelling" means: (a) any building,
or (b) any structure, vehicle or vessel (whether mobile or
not) "or part thereof, occupied as a separate dwelling
and includes any garden or portion of ground attached
to and usually occupied with the dwelling or otherwise
required for the amenity or convenience of the
dwelling".
Section 3 contains the provisions which make a
Conveyance in contravention of the Act void. It goes on
to provide that no Conveyance will be void by reason of
Section 3 if it is made to a Purchaser for full value who, in
good faith, acquires an interest in the property. The
Conveyancing consequences which are now becoming
standard requirements flow from this provision because a
Purchaser for full value will not be deemed to be a
Purchaser in good faith unless certain reasonable
enquiries are made. The rest of this Memorandum
attempts to set out shortly what these enquiries are in
conveyancing transactions and how the results of these
enquiries should be verified.
The Act does not just apply to private houses. For
example, a residential public house, a residential shop and
a farmhouse can all come within the definition.
If the Act does apply to a transaction there are two
essential ingredients. The first is whether the house is or
was a family home
for some period of time
and the
second is whether there is a spouse whose consent is
necessary. For example, a residence owned by a limited
company may be a family home but a limited company
cannot have a spouse and the question of consent or
verification should not arise. Again, the property may
have been the family home of a married couple but the
Vendor may now be a widow or widower and there may
be no person whose consent is needed. There is a
mistaken impression that because a couple may now have
a family home elsewhere, that the Act does not apply to
the sale by a spouse of a former family home. Consent is
needed in any such case.
In investigating a title you are unlikely to overlook the
necessity of checking each Deed since the Act to verify
compliance with the Act. However, care must be taken to
see that there are no outstanding claims by the spouse of
a tenant or lessee under a letting or sublease of a family
home. The Courts have. taken the view that consent
cannot be given retrospectively. This seems reasonable in
view of the word "prior" before the word consent.
There have been many interesting cases already heard
arising out of the Act. There are however other points
which have not yet been clarified and are still the subject
of some confusion. One of these is the question of whether a
minor spouse can validly execute a consent. It is
surprising to us how often this arises. The better opinions
seem to be that a minor spouse can consent but the price
of being wrong is so severe that many solicitors feel that
they cannot take the risk and insist on an Order of the
High Court being obtained to authorise the consent. This
usually arises in the case of young couples buying their
first house and of course they are usually the people who
can least afford the extra expense of a Court Order. The
Law Society have asked the Department of Justice to
amend the Act to clarify this and the proposal seems to
have been sympathetically received.
Another question is whether consent arises in a sale by
a personal representative in due course of administration.
For example, if a married couple go to live with the wife's
widowed mother. They share the expenses of the house or
pay her rent. The widow dies and appoints the daughter
executrix and universal legatee. If the daughter assents
and sells as beneficial owner consent of her spouse will be
needed. What happens if she sells as legal personal
representative in due course of administration? The better
opinions are that consent cannot arise on a sale by a
personal representative
qua
personal representative.
However, again the price of being wrong is such that
many solicitors feel obliged to get a consent in such cases
or a Statutory Declaration to verify that none is
necessary. Some raise Requisitions as to whether the
property is the family home of the beneficiaries under a
Will or intestacy. On a sale by a personal representative
this is nonsense.
Another question is whether P. C. Moore's maxim
"once a family home always a family home" is correct.
For example, a man buys a residence in Dublin in 1960
and marries a few years later. The house is the couple's
family home. They buy a new house in joint names in
1977 but the husband retains the former house as an
investment, obtains planning permission and converts
it into flats. Is consent needed if the husband wants to sell
it now? It was hardly the type of case that the Act was
intended to deal with. However, it has the two essential
ingredients and most people take the view that consent is
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