The Gazette 1977

GAZ LTN - :

JANUARY/F IZ 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 be 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 of 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 3