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GAZETTE
DECEMBER1980
RECENT IRISH CASES
CONVEYANCING
Family Home Protection Act 1976
— consent of spouse to conveyance
not necessary where consent already
given to contract.
The Defendants (a husband and wife)
negotiated the sale of their family
home to the Plaintiff. The wife was
reluctant to attend the Husband's
solicitors' office to execute the
standard form of consent endorsed
on the contract, dated 20 July, 1978,
but signed a letter addressed to the
husband's solicitors drafted by the
husband unequivocally consenting to
the sale, on 3 July 1978. The
solicitors for the husband informed
the solicitors for the Plaintiff of the
receipt of this letter and stated that it
w<$uld be furnished in lieu of an
endorsement on the contract.
Domestic difficulties arose between
the Defendants themselves and on 11
July 1978 the Husband's solicitors
wrote a letter to the wife which letter
did not contain any reference to the
sale, but which letter included:
"as you are already aware, the
Family Home Protection Act,
1976 prevents the sale of the
family home by either spouse
without the consent of the other
spouse. I would recommend,
therefore, that both you and your
husband execute separate deeds
of renunciation of your rights
under this Act in order to protect
any future property transactions
by either party".
On the same day, the solicitors for
the husband wrote a somewhat
similar letter to the husband.
The wife subsequently engaged
separate solicitors to whom the
husband's solicitors wrote on 14
August 1978 to say that the wife had
informed them that she was not
prepared to execute a Family Home
Protection Act declaration and
endorse her consent on the deed (to
the Plaintiff). This letter contained the
following statement:
"Your client (i.e. the wife) did
consent to the sale".
Negotiations proceeded between the
husband's solicitors and the wife's
solicitors as to terms on which the
wife would endorse her consent, but
without success.
The Plaintiff and the wife had had
three meetings between June and the
end of August, 1978 and at the last
meeting the wife had asked for a
further week to complete and get out
of the family home, but did not
suggest that she was not going to get
out at all. The Court felt that it
seemed to follow from this that the
wife did not suggest that she had not
intended to consent to the sale or that
she thought the consent was
conditional
on
the
husband
purchasing a house in Dundrum, Co.
Dublin, (on which the Defendants
had put a small deposit), or that she
thought that the consent was, for any
reason, not final and binding when
she signed the letter of 3 July 1978.
Presumably because of the
matrimonial situation the husband
did not proceed with the purchase of
the house in Dundrum and that left
the wife in the position, as she stated
in evidence, that she "had nowhere to
go and could do nothing about it".
It was argued by the Defendants
that the consent of the wife was
conditional
on the
husband
purchasing the house in Dundrum. It
was also argued that if the consent
were held to have been unconditional,
a further consent in writing was
necessary for the actual conveyance
to the Plaintiff and that the Court
should refuse to make an order
dispensing with the wife's consent
under section 4 of the said Act of
1976 as it was not unreasonable for
the wife to refuse consent having
regard to the provisions of Section
4(2) of that Act, which provides as
follows:
"the Court shall not dispense
with the consent of the spouse
unless the Court considers that it
is unreasonable for the spouse to
withold consent, taking into
account all the circumstances
including,
(a) the respective needs and
resources of the spouses and of
the dependant children (if any) of
the family . . ."
Held
(per McWilliam, J.):
(1) That the consent of 3 July 1978
was intended
to be an
unconditional consent, although
the wife may have believed that
the husband was going to
proceed with the purchase of the
house in Dundrum. The Court
did not accept that the dispute
between the husband and the
wife as to the disposition of the
purchase price, which arose after
the consent, and that therefore
that consent of 3 July, 1978 was
sufficient to comply with Section
3 of the said Act of 1976.
(2) That while on a strict inter-
pretation of Section 3 of the said
Act of 1976, it could be said that
there mast be a consent, both to
the Contract and to the final con-
veyance, it could not be believed
that it could have been the
intention of the Legislature to re-
quire two consents for the
completion of one transaction
and thus leave a purchaser in the
position of conducting all the
work and incurring all the
expenses necessary for the
completion of a purchase only to
find that a spouse had changed
his or her mind about giving con-
sent and required that the whole
transaction be abandoned.
S.K. v. P.T. and A.T.
— High Court
(per McWilliam, J.) — 15 July 1980
— unreported.
EVIDENCE
When evidence is given under oath
by an expert witness that he holds a
particular qualification and is entitled
to practice a particular profession,
when that expert would be commhing
an offence if he were not so entitled
or qualified to so practice, then there
is a rebuttable presumption in favour
of the expert that he is so qualified
until the contrary is proven.
The Defendant was prosecuted, as
owner of a herd of cattle, for breach
of
the
Brucellosis
Testing
Regulations, (S.l. 120 of 1966) made
pursuant to the Diseases of Animals
Act, 1966, for failing to present for
brucellosis testing an eligible animal,
that being an animal not being a
reactor from a previous test or an
animal deemed to be a reactor under
the Bovine Tuberculosis (Attestation
of the State) Order 1965. For the
purpose of carrying out these tests
there is a statutory provision for the