“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 made reasonable enquiry. The charge was therefore held to be invalid, as no valid consent had been obtained. The Judge also held that the bank should have advised the wife to obtain independent advise, but rejected the notion that this stemmed from a duty owed by the bank to the wife. It was in the banks own interest to ensues that a real consent had been obtained, because if they had not, the consequence was that the charge was void. This does put a lot of responsibility on the bank, but I feel that this is necessary, as the bank is a professional organisation with trained staff who are aware of the laws in relation to this area, in contrast to a spouse with no legal background and thus know knowledge of what he or she may be getting themselves into, by signing a consent form.
Section 3 of the Family Home Protection Act has also greatly complicated the task of a purchasing solicitor in relation to the purchase of residential property. Not alone is it necessary to ensure that consent is forthcoming from the spouse of the present vender, it is also necessary to investigate the possibility that the present transaction might be invalidated by the absence of consent to a previous transfer of the house. This is clearly very inconvenient for the conveyencer, as it is the responsibility of him or her to inquire into the validity of prior transactions, to which their client was not a party. Although new legislation Held under the Family Home Act 1995, improved the situation by introducing a six year cut of point to take an action, and also as a result of the findings in the case of Guckian v. Brennan, it was established that in relation to registered land, there was no need for a purchaser to inquire into the validity of past transactions. This was justified on the basis of the principle that “in the absence of fraud, the register affords conclusive evidence of the validity of the title.” This puts the responsibility on the land registry to police the enforcement of the Act. This is good news for solicitors as the workload and responsibility is greatly reduced. Gannon J’s decision in the case has been widely debated by academics, who believe that when the legislation is interpreted in detail it is demonstrably incorrect in view of the plain wording of the relevant provisions of the registration of title Act 1964 and the Family Homes Protection Act 1976. 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. Weir 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. In my opinion I believe that it is necessary to put the burden on the solicitor to investigate the validity of the property, as this is what the legislation was put in place.
Section 4 provides that a court may dispense with the consent of a spouse if it is unreasonably held, “taking into account all the circumstances including.”
(a) The respective needs and resources of the spouses and of the dependent children (if any) of the family, and
(b) in a case where the spouse whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security to tenure in the family home and in the alternative accommodation.
There is extensive case law relating to this, but for the purposes of this assignment it is unnecessary to delve in to it in great detail. But it is worth mentioning as indicated by the word “including”, (a) and (b) are not all embracing, the court being able to take into account other relevant circumstances.
The Doctrine of notice operates in a completely novel manner. Under Section 3(3)(a) of the 1976 Act a purchaser for full value takes a good title despite lack of consent by the non-conveying spouse. Purchaser is defined by section 3(6) as a purchaser in good faith. This was examined in the case of Somers v. Weir; it was held that the expression in good faith imports a doctrine of notice into section 3. This was again expanded on in the case of Allied Irish Bank v. Finnegan, here the Supreme Court held that the purchaser in the case had to establish that he did not receive any notice of the possible invalidity of the consent. This is very similar to the equitable doctrine of notice in some respect but the out come is quit different. In equity a bona fide purchaser without notice of a legal estate will take the legal title free of the equity. A purchaser with notice of the equity will nevertheless still obtain the legal title by the conveyance, but will take it subject to the equity. In contrast to the situation in hand the question of notice determines whether the purchaser acquires any title at all.
The question now arises, that if the conveying spouse denies that the house is a family home, can the purchaser rely on that. Or should the purchaser obtain a statutory declaration setting out the facts, which are true. The question is broached in the case of Reynolds v. Waters. This case involved a purchaser who enquired of the vender whether the property in question is a family home. The vender denied it was. After further inquiry from the purchaser of the facts, the vender explained that he was married but was abandoned by his wife before they moved into the property and are now divorced. He included a statutory declaration. The purchaser asked for consent to be given by the wife, and a joint declaration to be written up. The vendor refused and sought a declaration under section 4, which was granted by the high court. The question that now remained was whether the purchaser was liable to pay interest on the money from the date that the vender replied. This pitched the question to the courts whether or not it is necessary for the purchaser to demand the consent of the wife, or would the original declaration suffice. The court held that:
- The purchaser’s solicitor was too cautious. There was no general principle that a prudent purchaser should not accept the uncorroborated statutory declaration of a vendor merely because, the vendor had a financial interest in the transaction;
- if the statement later turned out to be incorrect due to fraud or carelessness then the purchaser is said to have acquired the property in good faith and, if for full value, the conveyance is then valid under s3(3)(a); and
- the court suggested that it might be otherwise if the purchaser’s solicitors had reason to doubt the truth of the statement.
This judgement is quite significant, as it appears to go against what the Family Home Protection Act, was originally designed for in the sense that these does not aid in any way the protection of the dependent spouse, but does secure the position of the purchaser. In some respects this is beneficial, because at some point the line has to be drawn as to the responsibility of the purchaser to establish whether or not the property is a family home and if consent is required or not. The negative affect is that it leaves the dependent spouse vulnerable to unscrupulous husbands. It is necessary to secure the position of the purchaser, but the protection awarded to the dependent spouse is not adequate in this circumstance.
Section 5 of the Act concerns the protection of spouse’s rights to reside in the family home. Subsection 5(1) provides:
“When it appears to the court, on the application of a spouse, that the other spouse is engaging in such conduct that may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of depriving the applicant spouse or a dependent child of the family of his residence in the family home, the court may take such order as it considers proper, directed to the other spouse or to any other person, for the protection of the family home in the interest of the applicant spouse or such child.”
This is a situation where the courts engage in pre-emptive action, and a wide variety of possible orders can be made by the court when s 5(1) is judged applicable. There are two categories of behaviour, which would lead to an application being successful.
- Conduct likely to lead to the loss of an interest in the family home.
- Conduct likely to render the house unsuitable for habitation as a family home.
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. DP 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.
BIBLIOGRAPHY
Texts Consulted:
-Family Law 4th Edition – Shatter’s
-Land Law in Ireland 2nd Edition – Andrew Lyall
-Murdoch’s Dictionary of Irish Law – Henry Murdoch
-Law Society of Ireland Conveyancing - volume 1
Articles Consulted:
-The Family Home Protection Act and Registered Land: A Reassessment of Guckian v. Brennan
-The Impact of the Family Law Act 1995 on the Family Home Protection Act 1976 – Claire Tunissen.
Cases Consulted:
Refer to foot notes.
Word Count: 2976.
High Court, unreported, September 1986.
Case analysis by The Law Society of Ireland, Conveyancing. Volume 1. p113.
P428 of Blaney J’s judgement.
Section Taken from article written by John Mee BCL, on The Family Home Protection Act.
Section influenced by Andrew Lyall’s Land Law in Ireland, second edition. P489.