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GAZETTE
DECEMBER 1989
Mini ster for Jus t i ce (Mr.
Burke):
A Bill to amend the
Solicitors Acts, 1954-1960 is at a
very advanced stage of preparation
in my Department and will be intro-
duced as soon as possible. As
Deputies will, no doubt, be aware
the Fair Trade Commission have
been conducting a study into the
legal profession and I understand
their report is expected shortly. Any
recommendations made by the
commission would need to be
taken into account before the Bill is
finalised.
Dai! Debate,
November 9, 1989
Family Home Protection
Legislation.
Mr. Flanagan
asked the Minister
for Justice if it is his intention to
amend the
Family Home Pro-
tection Act, 1976,
having regard
to the fact that the Act provided no
protection to a spouse in a situation
where a creditor applied for the sale
of a family home on foot of a
judgment mortgage against the
family home, for the amount of a
debt obtained against the other
spouse on the basis that the Family
Home Protection Act only applies
to conveyances by one or other of
the spouses and not by a third
party and that consequently a
judgment mortgage is not a con-
veyance within the meaning of the
Act, but an operation of law,
resulting in a situation whereby a
spouse can freely obtain an
unsecured loan, which if not repaid
can be registered against the family
home and ultimately lead to the
sale of the family home, in spite of
the absence of consent by the
other spouse.
Mini ster for Jus t i ce (Mr.
Burke):
I have no proposals to
amend the Family Home Protection
Act, 1967, so as to apply it to
judgment mortgages obtained by
third parties. When the Act was
initiated the then Minister for
Justice made clear in the House
that the legislation was not
intended to apply to judgment
mortgages - though there is
provision whereby a spouse may
apply to the court for protection if
the other spouse is behaving
improvidently with the intention of
putting the continued ownership of
the family home in jeopardy. In
addition, if the Act were to give
protection to spouses against sales
by judgment mortgages no doubt it
could operate to the disadvantage
of spouses who seek in the
ordinary way to arrange credit.
" . . . the legislation
was not intended to
apply to judgment
mortgages . . . "
Recent case law in any event
suggests that a spouse who is in
actual occupation of a family home
and who has acquired a beneficial
interest in that home has rights of
occupation as co-owner of the
home which would be binding on a
judgment mortgagee seeking a
sale. Moreover, the effect of the
legislation which is being prepared
in my Department to give each
spouse equal rights in the owner-
ship of the family home and
contents will be to strengthen the
position of the non-owning spouse.
A recent High Court decision which
is under appeal to the Supreme
Court could also have implications
for this area.
Dáif Debates,
November 21, 1989
PROBATE
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