The Gazette 1977

GAZ

LTN

JANUARY/F

BRUARY 1977

The position of a purchaser under the

Family Home Protection Act 1976

by Patrick Ussher, M.A., LL.B. (Cantab). Lecturer in Law, Trinity College, Dublin

This paper has the purpose of analysing the burden

placed upon a purchaser by the Family Home Protection

Act 1976. This Act strives to prevent a spouse,

consistently referred to during the Bill's passage through

the Dáil as "vindictive," from disposing of the family

home over the head of his or her mate. In fact, in the Dáil

Debates, such a vindictive spouse was generally assumed

to be masculine, and for convenience I shall adopt that

convention here, though, of course, the Act works both

ways, should there perchance happen somewhere to be a

spouse of the female variety sufficiently endowed with

both property and malice.

The basic underlying position adopted by the Act is

that any purported conveyance of the family home by a

husband without the prior written consent of his wife shall

void:

Section 3(1). And not only is the actual

conveyance or transfer void in such circumstances, but

also any

contract

to make such a conveyance: see the

definition of 'conveyance' in the interpretation Section

1(1). These formidable provisions are not absolute, as will

appear, but where they do bite, their consequences upon a

purchaser could be devastating. They have the potential

of transferring the burden of a husband's less than perfect

marital conduct from his wife to his purchaser who may,

at worst, be left not only homeless (his existing home

having been sold on the faith of the void purchase) but

also financially destroyed. At best, the disappointed

purchaser in such a case has the cold comfort of a

personal quasi-contractual action against a purported

vendor (if he has neither absconded nor become insolvent)

for moneys had and received by him under the void

transaction,

e.g.

a deposit paid to him or his agent where

the unconsenting wife comes to light before completion,

or the sole purchase money where she surfaces later; a

proprietary action might lie against such moneys where

they remain traceable; and, if a solicitor has been

employed, he may be justified in feeling vulnerable and

looking to his professional indemnity policy.

What then can a prospective purchaser do to avoid

these serious consequences? If the basic provisions of

Section 3(1) as outlined above had remained

unmodified,

he and his prospective mortgagee would, in order to

safeguard their respective interests, have been forced

to the ridiculous lengths of employing someone to

investigate the occupancy of the house throughout the

period of the prospective vendor's residence therein.

Apart from actual inspection of the premises in a search

for traces of departed women and children, enquiries

would be bound to include questions asked of the

neighbours. Had they ever observed a woman on the

premises? Then would follow the delicate matter of

eliciting from the prospective vendor his precise

relationship with the lady in question, supported, of

course, by statutory declarations which would

thenceforth lie on the title for all the world to sec. Every

now and then the vendor's answers would lead to

interesting discussions on the civil consequcnces of

church annulments, the effect of an Irish domicile on an

English divorce and on bigamy generally. These

investigations would not be confined to apparently single

and unattached prospective vendors: a vendor in current

possession of an apparent wife could not claim to be

above suspicion. The only limit to investigation would be

the period of the vendor's occupation of the house, since

to qualify as a "family home" the wife whose consent is

required must have been ordinarily resident there at some

time: Section 2(1).

But this basic position as it v/ould exist under an

unqualified Section 3(1)

was

modified by later provisions

of die Act, and the question remains to what extent these

modifications have relieved the purchaser from the

foregoing private investigator's dream and conveyancer's

nightmare, in which the spectral spouse arises in a new

guise to haunt not only the finer points of the Rule against

Perpetuities, buut everyday suburban conveyancing as'

well.

The Bill as introduced into the Dáil which even at that

stage represented the

sixth

draft of a "difficult and novel

piece of legislation" (Minister for Justice: Parliamentary

Debates, Dáil Éireann, vol. 291, No. 3, Col. 434)

modified the basic position of a purchaser under Section

3(1) in the following terms, which were themselves to be

substantially amended at the Committee stage into the

present form of the Act, representing, one must suppose a

seventh

or subsequent draft of what became by virtue of

them an even more "difficult and novel piece of

legislation". The purchaser's burden in Section 3(1) was

originally

modified in these terms:

"(3) Subsection (1) shall not apply as against a person

if he is a purchaser in good faith for full value and if all

such steps, inquiries and inspections as ought reasonably

to have been taken' and made for the purpose of

ascertaining whether a consent was necessary under that

subsection or, if necessary, was obtained were taken and

made by him or on his behalf; and if a question arises, in

any proceedings whether the conditions specified in this

subsection were fulfilled, the burden of proving this shall

be on that person".

Some solicitude for the purchaser under such a

provision was expressed during the second reading debate

in the Dáil, and in particular Deputy O'Kennedy

(ibid,

cols. 378, 379) asked pertinently what was meant by

"such steps, inquiries and inspections as ought reasonably

to have been taken" by a purchaser? The Minister in

winding up took the opportunity of explaining the duties

of a purchaser. Firstly, he explained his understanding

the requirement of "good faith" as being aimed against

collusion between vendor and purchaser

(ibid,

vol. 431).

It will be submitted below that "good faith"bears a

somewhat wider meaning than this. Secondly, he purported

to deal with the purchaser's obligation to make all

reasonable inquiries. "He must", said the Minister, "have

made all reasonable inquiries. The phraseology of the Bill

refers to the obligation to make reasonable enquiries as

does the Conveyancing Act, 1882. Deputy O'Kennedy