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.

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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”.

The family home protection Act, 1976 was prompted as a result of a report published in 1972 by the commission on the Status of Women, the purpose of the act was to prevent one spouse, in whose sole name the family home was vested, from dealing with the property without the knowledge and/or the consent of the non owning spouse. Section 3 of the Act provides that:

“Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then subject to subsection (2) and (3) and section 4, the purported conveyance shall be void”

The operation of s 3 (1) was discussed in Barclays Bank v. Carroll. This case involved a husband who transferred the family home to C, without having obtained his wife’s prior consent to the transfer. The transferee subsequently mortgaged the property. When C went bankrupt, his assignee in bankruptcy sought to have the mortgage set aside on the basis that the original transfer was void for the non-compliance with s 3 (1) and therefore c did not have sufficient title to create the mortgage. In the judgement Hamilton P stated, however, that, as the purpose of the section was the protection of the right of residence of the non-owning spouse, only he or she could invoke the section to have an offending conveyance declared void. In the instant case, as the wife has no desire to have the original transfer avoided, there was no other person entitled to do so. This basically means that any conveyance not complying to section 3 (1) can only be found to be void at the instigation of the spouse.

This section of the Act emphasises the need for consent, and there has been a lot of case law relating to it. For consent to be valid it must be a voluntary, fully informed consent made prior to the purported conveyance in writing. To date there has been no case law relating to consent being obtained by duress or undue influence. But the affect of this section has resulted in third parties and financial institutions being levied with huge responsibilities to protect the interest of the spouse. The Supreme Court in Bank of Ireland v. Smyth discussed the question of informed consent. Here the wife had given her consent to what she believed to be a charge over the land attached to the family home and the land. Mrs Smyth had executed her consent to the charge in the presence of an employee of the plaintiff bank. It transpired that the employee had not enquired of Mrs Smyth whether she understood what was being covered by the document to which she was consenting. The bank contended that it was not required to take into account what was in Mrs Smyth’s mind. Discussing the nature of spousal consent, however, Blayney J stated that validity of Mrs Smyth’s consent depended on whether she had full knowledge of what she was doing.

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“The spouse giving consent must know what it is he or she is consenting to. Since giving one’s consent means that one is approving of something, obviously, a precondition is that one should have knowledge of what it is that one is approving of”.   

In the instant case, Mrs. Smyth could not give a valid consent to the conveyance in question, as she was not aware of its full import. Furthermore, the court found the bank to be on notice of Mrs Smyth’s lack of knowledge, as it would have been apparent if the bank employee had ...

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