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  • Level: GCSE
  • Subject: Law
  • Word count: 3097

Examine the effects of this Act and its sister enactments, in order to determine weather or not the legislation relating to the family home is necessary and adequate.

Extracts from this document...

Introduction

The Family homes protection Act, 1976 is the first in a succession of enactments dealing with matters of family law, which have impacted greatly on Irish conveyancing practise. Since coming in to force on 12th of July 1976, the Family Home Protection Act, 1976 and its related enactments have done more to regulate the ownership of matrimonial property than any other piece of legislation since the foundation of the state. The purpose of this assignment is to examine the effects of this Act and its sister enactments, in order to determine weather or not the legislation relating to the family home is necessary and adequate. It is first important to discuss the meaning of the family home. Section 2(1) defines family home as meaning: "Primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a house whose protection is in issue ordinarily resides, if that spouse has left the other spouse, ordinarily resided before leaving" This section was not adequate and left a lot of questions unanswered, and as a result was amended by section 54 of the Family Law Act 1995, which read as fallows: "In subsection (1), Dwelling, means any building or any part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for amenity or convenience and is not being used or developed primarily for commercial purposes, and includes a structure that is not permanently attached to the ground and a vehicle, or vessel, whether mobile or not, occupied as a separate dwelling". ...read more.

Middle

At the moment the decision stands, but as it is only a high court judgement it is venerable in the sense that the Supreme Court or another High Court judge who was willing to look more closely at the relevant statutes might take a different view thus overcomplicating the situation for conveyancers. So there may be a need to copper fasten the present legal position through legislation. Subsection (2) provides that subsection (1) shall not apply to a conveyance if it is made by a spouse in pursuance of an enforceable agreement made before the marriage of the spouses. Subsection (3) basically provides that a conveyance shall not be rendered void under subsection (1) if it is made to a purchaser for full value meaning such value as amounts or approximates to the value of that for which it is given. For example if a vendor conceals the fact of his marriage and conveys to a purchaser is a family home, the appearance of the vendor's wife subsequent to the conveyance will not affect the validity of the conveyance, if the purchaser had no notice of the marriage or of the wife's existence and is bona fide and has given full value. This does relieve a lot of pressure on the purchaser, and he will not be left with the burden of say a financial institution. But the responsibility is still on the solicitor to make the relevant inquiries and inspections. In the case of Somers v. Weir8 Just such a situation arose where by a purchasers solicitor failed to make the enquiries he reasonably ought to have made properly to ascertain whether a wife's consent was required and as a result the transaction was found to be void. ...read more.

Conclusion

There is also a requirement of intention in order for an action to succeed. The section requires proof that the husband acted in such a fashion with the intention of depriving his wife or a dependent child of the family of his or her residence in the family home. There has been extensive case law relating to this. And it is important to look at some of them. In CP v. DP14 Finlay P. rejected contention that the necessary intention may be imputed to a spouse from the natural and probable consequences of his conduct, stating he was satisfied he could not: "construe the word 'intention' in section 5 subsection 1 of the 1976 Act as being equivalent to the implied or imputed intention which can arise from the natural and probable consequences of an act or omission. There must be ... an element of deliberate conduct." There for he concluded that he cannot transfer the house into the sole name of the wife although he was satisfied that the husband was in debt, and the family home was at risk. The debts had arisen as a result of a slump in the property market, affecting the husband work as an architect. The judge ruled that the family home should be sold and from the proceeds a family home will be provided for the husbands wife and child and separate accommodation for himself. This is an example of pre-emptive action on behalf of the courts. It has given the depended spouse security, which is the main aim of the act and at the same time does protect the interests of the husband in respect of Finlay P's judgement, and view on the approach of intention. It was necessary to introduce this legislation, and the courts have refined the legislation in a manner that best aids both parties. ...read more.

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