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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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