family home protection Flashcards
(33 cards)
1
Q
Introduction
A
- Irish law has traditionally protected the family home within the context of marriage, as reflected in both the Constitution and statutory provisions. However, this narrow definition conflicted with the broader concept of family under Article 8 of the European Convention on Human Rights, which values the quality of personal relationships.
- Given the central role of the home, the law seeks to balance protecting the family/shared home with commercial realities, such as bank repossessions. Two key schemes protect property rights:
o Statutory protection: Legislation requires spousal consent for the sale or transfer of the family home, allows court intervention to prevent unfair disposals, and modifies the doctrine of notice to safeguard spousal rights.
o Equitable protection: Based on trust law, this considers direct and indirect contributions by a dependent spouse and can also apply to unmarried cohabitees, making it especially adaptable. - The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 extended legal protection to non-marital relationships, marking a significant shift toward broader recognition of diverse family structures in Irish property law.
2
Q
The role of the legislature
A
- The “family home” of the marital family receives three forms of statutory protection, each of which will be considered in turn.
1. Family Home Protection Act 1976 (where the marriage subsists and both spouses are alive).
2. Succession Act 1965 (where a spouse dies).
3. Family Law Act 1995 and Family Law (Divorce) Act 1996 (where the marriage breaks down).
4. The Civil Partnership Act 2010 provides protection for the “shared home”
3
Q
Family Home Protection Act 1976/Civil Partnership Act 2010
A
- The Family Home Protection Act 1976 was enacted to protect non-owning spouses, often women, who had no legal rights in the family home, placing them and their children in a vulnerable position. It is a gender-neutral law and marked a significant step in improving the status of women, many of whom lacked financial independence at the time.
- The Civil Partnership Act 2010 extended similar protections to civil partners, introducing the concept of the “shared home”, applicable only within valid civil partnerships, and largely mirroring the 1976 Act’s provisions.
4
Q
The family/shared home
A
- Section 2(1) of the Family Home Protection Act 1976: “Family home means primarily, a dwelling in which a married couple ordinarily reside. The expression comprises in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before leaving.”
- Section 27 of the 2010 Act:“(a) subject to paragraph (b), a dwelling in which the civil partners ordinarily reside; and (b) in relation to a civil partner whose protection is in issue, the dwelling in which that civil partner ordinarily resides or, if he or she has left the other civil partner, in which he or she ordinarily resided before leaving.”
- From these definitions, three categories of protected homes arise:
1. The ordinary residence of a married couple or civil partners;
2. The ordinary residence of the spouse or civil partner in need of protection;
3. The former ordinary residence of the protected spouse or partner who has left the home (e.g. due to abuse or necessity). - LB v HB – the Court held that it is not necessary for the couple to live together in a traditionally intimate or functional marital relationship. What matters is ordinary residence.
5
Q
Land attached to the dwelling house
A
- Section 54 of the Family Law Act 1995 amended s.2(2) of the 1976 Act to define a dwelling as: “… any building or part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling … not being used or developed primarily for commercial purposes.”
- This definition is echoed in s.27 of the 2010 Act. It acknowledges that the family/shared home may be part of a larger property, but only the residential element is protected. The courts can sever the protected home from the unprotected
6
Q
Section 3 – consent of the non-owning spouse/civil partner
A
- Sections 3 (1976 Act) and 28 (2010 Act) – prohibit one spouse or civil partner from disposing of the family/shared home without the prior written consent of the non-owning spouse/partner. This requirement does not apply to co-owners, as all must join in a valid conveyance.
- Section 1(1) of the 1976 Act – a “conveyance” includes a mortgage, lease, transfer, and any enforceable agreement to dispose of property (excluding wills and donatio mortis causa).
- A conveyance made without proper consent may be declared void if proceedings are brought within six years, subject to exceptions.
- This right of veto is not a property right, so it does not bind later-registered interests. (However, equitable interests from contributions do constitute property rights.)
- Consent must be: Given before the conveyance, In writing, and Validly given.
7
Q
Prior consent
A
- Consent must be given prior to the conclusion of the conveyance:
o For unregistered land, this means before delivery of the deed.
o For registered land, it means before registration. - Though most case law relates to the 1976 Act, the principles apply equally under the 2010 Act.
- Bank of Ireland v Hanrahan – the husband left title deeds with the bank pending spousal consent. When the wife signed the consent the next day, the court held it was valid prior consent, as the mortgage wasn’t complete until after the consent was given.
8
Q
In writing
A
- It must be in writing, not oral
9
Q
Valid
A
- The onus is on the third party to ensure that the consent is real. Must be voluntary and fully informed.
- Bank of Ireland v Smyth – the husband sought to mortgage lands, and the bank required his wife’s consent. She signed the consent form but was not advised to seek independent legal advice and misunderstood that the bank could take possession of the family home. After the husband fell into arrears, the bank sought possession, but the HC ruled the consent invalid.
o The bank appealed, arguing it had no obligation to ensure consent was fully informed.
o Supreme Court held that consent under s.3 must be fully informed. Mrs. Smyth did not understand the full implications of her consent, believing it only applied to the land, not the family home. The court ruled her consent was invalid.
o The bank was found to have constructive notice of her lack of understanding and should have advised her to seek independent legal advice rather than relying on the consent as valid.
10
Q
Notice
A
- The purchaser will be adversely affected if they knew or should have known that consent under s.3/s.28 was not obtained or was invalid.
- Somers v Weir – a wife claimed to have contributed to the purchase of a leased property and was forced to leave the family home. In 1976, her husband sold the house to the plaintiff, who relied on a statutory declaration stating that the wife had abandoned the property. The purchaser’s solicitor did not request the separation agreement.
o Later, the wife refused to consent, and the purchaser sought a court order to dispense with her consent under s.4 of the 1976 Act.
o SC denied the request, ruling that the purchaser had constructive notice of the wife’s lack of consent, as they were aware of the separation agreement and failed to examine it. The court emphasized the importance of notice in such transactions. - Lyall – Under s.3/s.28 of the 1976 Act, notice has a more radical effect compared to the equitable doctrine of notice. While in equity, a bona fide purchaser with notice takes title subject to the equity, under the 1976 Act, a purchaser with notice of the non-conveying spouse’s rights takes no title at all. If the purchaser is unaware of the spouse’s rights, they acquire a valid title, but if they have notice, the conveyance is voided.
- Constructive notice is a significant risk for the purchaser, who must inquire whether the property is a family/shared home. If so, consent is required, or a s.4 order to dispense with consent is needed. Vendors commonly make a “Family Home Protection Act Declaration” regarding whether the property is a family home or shared home.
- Reynold v Waters – the court provided these guidelines, in relation to when a partner selling the property lies about the house not being a family home:
1. There is no general rule that a prudent purchaser should disregard a vendor’s uncorroborated statutory declaration, even if the vendor has a financial interest.
2. If the statement proves incorrect due to fraud or carelessness, the purchaser, if acting in good faith and for full value, may still have a valid conveyance under s.3.
3. However, if the purchaser’s solicitor had reason to doubt the statement’s truth, the situation could be different.
11
Q
Exceptions to the need for consent
A
- Pre-marriage/civil partnership agreements: s.3(2)/s.28(2) don’t apply to enforceable agreements made before the relationship began.
- Bona fide purchaser without notice: s.3(3)/s.28(3)(a) protect purchasers for full value acting in good faith and without notice.
- Conveyance by a non-spouse/civil partner: s.3(3)(b)/s.28(3)(b) exempt such transfers (Lyall)
- Court-ordered sales: Consent is not needed for sales ordered under the Family Law Acts or the 2010 Act.
12
Q
Dispensing with spousal consent or consent of a civil partner
A
- S.4 (1976 Act) / s.29 (2010 Act) – The court may dispense with required consent only if an application is made before the conveyance takes place (as held in Somers v Weir). The application must be made under the relevant Act and brought by either:
o The spouse/civil partner wishing to dispose of the property, or
o The intended transferee. - The court may grant the application in four situations:
o The non-owning spouse/civil partner lacks mental capacity.
o They cannot be located after reasonable efforts.
o The spouse has deserted the applicant (no exact equivalent in civil partnerships, but similar logic applies under s.29(3)(b)).
o The non-owning spouse/civil partner is unreasonably withholding consent.
13
Q
Where the spouse/civil partner unreasonably withholds consent — s.4(2)/s.29(3)(b)
A
- The court will not dispense with consent unless it considers that withholding it is unreasonable, taking into account all the circumstances, including:
o The needs and resources of both spouses/civil partners and any dependent children.
o Where alternative accommodation is offered, the relative security of both the existing and proposed homes. - R v R – what amount to unreasonableness – a husband sought to mortgage the family home to pay debts and buy a house for his new partner. His wife refused consent, citing his limited salary and the financial difficulties to support two households. He applied under s.4 to have her consent dispensed with.
o The court refused, holding her refusal was not unreasonable, as it was based on valid financial concerns rather than emotion or malice. - SO’B v MO’B – a husband sought to sell the family home to fund a move back to Ireland with his new family. His first wife, still legally his spouse under the 1976 Act, refused consent. He applied under s.4, offering her a share of the proceeds for alternative accommodation.
o O’Hanlon J. held the refusal was unreasonable, as both were responsible for the marital breakdown and the offer was fair. Consent was dispensed with.
14
Q
Conduct of the spouse
A
- Section .5(1) of the 1976 Act – a spouse can apply to the court for relief if the other spouse’s conduct may lead to the loss of any interest in the family home or make it unsuitable for habitation, with the intention of depriving the applicant spouse or dependent children of the family home. The court may issue orders against the respondent spouse or a third party to protect the interest.
- The section requires proof that the respondent’s conduct is likely to result in loss or uninhabitability, and that this is the intended outcome.
- ED v FD – the husband deserted the family home, spent extravagantly, and failed to make maintenance payments. An application was made under s.5.
o Costello J. held that the discretion under s.5 was wide but could only be exercised if the court was satisfied that the spouse acted with the intention to deprive.
o While the husband’s actions were deemed “improvident,” there was no evidence of the necessary intention to deprive the wife of her interest. - DC v AC – Carroll J. held that “conduct” under s.5(1) includes both activity and inactivity, such as failing to make mortgage repayments.
- In CP v DP and S v S – the court emphasized that “deliberate conduct” was required, and it was insufficient to infer intention merely from the circumstances.
- Section 5(2) – If the court finds that a spouse’s conduct led to the loss of the family home, it may order compensation for the applicant spouse and/or dependent children, as is just and equitable in the circumstances.
15
Q
Section 30(1) and conduct of the civil partner
A
- Section 30(1) of the 2010 Act allows a civil partner to apply to the court if the other civil partner is engaging in conduct that may lead to the loss of any interest in the shared home or make it uninhabitable, with the intention of depriving the applicant or a dependent child of their residence. The court may then make any order it deems necessary to protect the shared home in the interest of the applicant or the child.
- The application of s.30(1) of the 2010 Act is similar to s.5(1) of the 1976 Act. Before the enactment of s.137 of the Children and Family Relationships Act 2015, dependent children were not explicitly mentioned, but it was generally accepted that the court would consider their interests when making any order.
16
Q
In cases of matrimonial dispute
A
- Tesco Ireland Ltd v McGrath – The plaintiff (Tesco), seeking to purchase land, requested confirmation that it was not a family home. On learning of judicial separation proceedings, it sought access to the pleadings, which was refused due to in camera rules. Unable to verify the property’s status, the plaintiff sought to void the transaction.
o The court held the plaintiff, aware of the proceedings, was not a purchaser in good faith. As it could not fulfil its obligations under the 1976 Act, the transaction was void. - Following Tesco, a moratorium on dealings with property during separation or divorce is advisable, as prudent purchasers will likely withdraw until proceedings conclude.
- Caution is essential where the vendor claims to be divorced or separated. Separation agreements or divorce decrees should be obtained. If unavailable, solicitors should seek:
o A declaration from the vendor’s solicitor confirming they’ve read the agreement and quoting relevant extracts; and
o A declaration from a party to the agreement, with a solicitor-certified copy of extracts. - A spouse may also give general consent to future transactions in a separation agreement.
17
Q
Where the property is registered property
A
- Where land is registered, the Registrar is concerned with compliance under the 1976 and 2010 Acts, as only valid transfers may be registered. A statutory declaration or solicitor’s declaration that the property is not a family/shared home will generally suffice.
- Guckian v Brennan – The plaintiffs, a married couple selling their registered family home, were asked by the purchasers to show the 1976 Act did not affect their 1978 acquisition. The plaintiffs refused, claiming their registered title was conclusive.
o The purchasers sought a declaration under s.9 of the Vendor and Purchaser Act 1874 that the requisition was unanswered, and good title could not be shown.
o Gannon J. held for the plaintiffs, stating that while it may be prudent to make family home enquiries regarding the current sale, there is no obligation to investigate past transactions. The Register’s conclusiveness under s.31(2) of the Registration of Title Act 1964 protects both vendor and purchaser in this regard. - Mee criticises Guckian v Brennan, arguing that the 1976 Act can affect registered land despite its registration (Mee, “The Family Home Protection Act and Registered Land: A Reassessment of Guckian v Brennan” (1997) 2(4) CPLJ 58). His points are:
1. Section 72 of the 1964 Act lists burdens affecting land without registration, including those under the 1976 Act.
2. Section 59(1) restricts land alienation, and s.3 of the 1976 Act falls under this restriction.
3. Thus, s.3 of the 1976 Act can affect registered land, contrary to Guckian.
18
Q
Unregistered land
A
- The Registrar is not concerned with the validity of the transaction, but it is common practice to note that spousal or civil partner consent was required and obtained on the Deed and Memorial.
19
Q
Mortgages
A
- Section 7(1) of the 1976 Act and Section 32 of the 2010 Act protect spouses/civil partners from a landlord or mortgagor taking possession of the family/shared home for failing to meet mortgage or lease terms. In possession applications, if the court finds that the non-owning spouse/civil partner is willing and able to pay the arrears and future instalments, and it is just and equitable to do so, the court may adjourn the possession proceedings.
20
Q
Succession Act 1965
A
- The 1965 Act allows the surviving spouse/civil partner to request the executor to appropriate the family/shared home under Section 56, which enables the surviving spouse/civil partner to require the personal representatives to use the home to satisfy their share of the estate. The personal representative must inform the surviving spouse/civil partner of this right, and the spouse/civil partner has six months to exercise it.
21
Q
Family Law Act 1995 and Family Law (Divorce) Act 1996
A
- When a marriage ends, the court divides the couple’s assets, considering factors like each spouse’s needs, contributions, and the welfare of any children.
22
Q
Property adjustments orders
A
- Under s.9 of the Family Law Act 1995 or s.14 of the Family Law (Divorce) Act 1996 – the court can make various orders, including a transfer of property order. This can require a spouse to transfer property (real or personal) to the other spouse, a dependent family member, or another person. While the family home is the most common property transferred, any property linked to a spouse can be included.
23
Q
Right to occupy
A
- Under s.10 of the Family Law Act 1995 and s.15 of the Divorce Act 1996, the court can grant one spouse the right to occupy the family home to the exclusion of the other, either for life or for a period the court specifies (e.g., until the children complete their education). In making this order, the court considers the welfare of both spouses and dependent family members, ensuring proper and secure accommodation for them.
24
Q
Order for sale of property
A
- S.15 of the 1995 Act and s.19 of the 1996 Act – the court can order the sale of property in which both parties have a beneficial interest, attaching any necessary conditions. If a third party has a beneficial interest, the court must allow them the opportunity to make representations before issuing the sale order.
25
Matters to be taken into account when making orders
- The court must ensure proper provision for each spouse and dependent family members under the 1995 Act (s.16) and 1996 Act (s.20). In making its decision, the court considers:
1. Financial resources: The income, earning capacity, and assets of each spouse (DT v CT), including those acquired before marriage (M v M) and after, with future potential also considered.
o In MD v ND, the Supreme Court varied orders validly made by the High Court because of a devaluation of the assets after their date of valuation.
2. Financial needs: Present and future living expenses, obligations (e.g., alimony, child support), and mortgage or debts.
3. Standard of living: The court strives to minimize the impact of the marriage breakdown on the family’s lifestyle.
4. Age and duration of marriage: Age can affect employability and financial stability; shorter marriages may receive less provision.
5. Physical or mental disability: Special attention is given to the needs of a spouse with a disability.
6. Contributions to the family: Both financial and non-financial (e.g., homemaking) contributions are considered.
7. Impact on earning capacity: The court considers how roles during marriage, such as homemaking, affect future earning potential.
8. Statutory entitlements: Social welfare benefits and any other statutory rights.
9. Conduct: Misconduct can be considered, but it is less significant than financial needs.
10. Accommodation needs: The spouse with children typically has a greater need for housing, and the court may order the sale of the family home to secure separate housing.
11. Loss of benefits: Loss of benefits (e.g., pension rights) may be compensated.
12. Rights of third parties: The needs of new spouses or partners may also be considered, including in cases of remarriage or new partners (JCN v RNN)
26
General guiding principles
- The term “proper provision” is not defined by the legislature, leaving it to judicial discretion.
- DT v CT – Murray J. highlighted that the Oireachtas deliberately avoided setting specific guidelines. The court must consider all relevant factors (1-12) and determine how much weight to give each, providing an explanation for its decision.
- There is no "clean break" principle in this jurisdiction, meaning the courts can order periodic payments rather than a lump sum. However, the courts can enforce a lump sum, either in addition to or as an alternative to periodic payments.
27
Dissolution of a civil partnership
- Section 110 of the 2010 Act – allows for the dissolution of a civil partnership if the court is satisfied that proper provision has been or will be made for the civil partners and any dependent children.
- Prior to the 2015 amendment (s.150 of the Children and Family Relationships Act), there was no explicit requirement to consider the needs of dependent children.
- Upon dissolution, the court can make various property orders:
a) Property adjustment order (s.118)
b) Miscellaneous orders (s.119), such as exclusive occupation of the shared home or partition of the property
c) Order for sale (s.120)
- Like the 1995 and 1996 Acts, s.129(2)(a)–(l) of the 2010 Act lists factors the court must consider when making these orders.
28
The role of equity
- Historically, property was often registered solely in the husband’s name, with the wife having limited property rights but a "deserted wife’s equity" for accommodation protection. This was a personal right, not enforceable against third parties, as confirmed in National Provincial Bank v Ainsworth.
- Today, when the family home is co-owned, both spouses must consent to any transfer. Even if the property is solely in one spouse's name, the other may gain an equity interest through contributions to the purchase.
- This protection extends to all relationships, though it is most common in marital, civil partnership, or intimate relationships.
29
Direct contributions
- C v C – the court held that where one spouse contributes directly to the purchase of the family home, through a lump sum or mortgage payments, the legal owner holds the property on trust for both spouses as tenants in common, with shares reflecting their actual contributions.
- HD v JD – although the husband held legal title, the wife contributed financially to the mortgage and worked unpaid in a jointly-run business. The court found that both types of contribution gave her an equitable interest in the property.
30
Indirect contributions
- Irish case law on indirect contributions to the family home has been more controversial than cases involving direct contributions, with courts taking divergent approaches.
- These stem from Gissing v Gissing –
- Lord Reid’s minority view: Indirect contributions (e.g. covering household expenses) can give rise to an equitable interest even without an express agreement. He stressed the unrealistic nature of expecting formal legal arrangements between spouses.
- The majority view: Indirect contributions alone are not enough; an express agreement is needed to create an equitable interest.
- Ireland followed Lord Reid’s approach in FG v PG – Finlay P. found that the wife’s payments into a joint account, though not used for the mortgage, freed the husband to meet mortgage costs. This justified an equitable interest in the property, even without an express agreement.
- Heavey v Heavey and C v C – Kenny J. held that no express agreement was needed and treated direct and indirect contributions equally in creating equity.
- However, other cases like MG v MD and R v R followed the majority in Gissing, requiring an express agreement for indirect contributions to give rise to an equitable interest.
- The conflict was resolved by the Supreme Court in McC v McC – The Court held that there is no difference between direct and indirect contributions when it comes to establishing an equitable interest in the family home.
o The wife had contributed to the purchase of the first home and allowed her share of the profit from its sale to be used by her husband for the new home.
o Although the funds were used for furniture rather than the house itself, Henchy J. ruled those contributions, whether direct or indirect, can give rise to a trust.
o Even indirect contributions, such as paying into the general family fund, may entitle a spouse to a share in the property.
31
Improvements
- Contributions to improvements on a property generally do not give rise to a beneficial interest. This is because the property already belongs to one party, who benefits from the improvements. At most, the contributing party may be entitled to financial compensation, not ownership rights.
- W v W – Finlay P. held that unless there’s an agreement or clear evidence the spouse believed she’d be repaid, no equitable interest arises, only a right to be reimbursed in money.
- Even after McC v McC, which removed the need for agreement in purchase contributions, courts have continued to treat improvements differently.
- NAD v TD and CF v JDF – the courts confirmed that improvement contributions, without agreement, do not create a beneficial interest. This remains the current legal position.
32
Work in the home
- Whether unpaid domestic work gives rise to a beneficial interest in the family home is highly contested. These cases typically involve women who have worked full-time in the home, raising children and supporting their spouses, without outside income.
- Article 41.2 of the Constitution recognises the value of a woman’s work in the home and obliges the State to ensure mothers are not forced to neglect home duties due to economic need. Though controversial and often seen as outdated, it has influenced case law.
- BL v ML – the wife helped farm the land, refurbished the house, raised the children, and supported the husband’s business efforts, including hosting clients.
o The High Court (Barr J.) held that while her work on the farm/business didn’t give rise to an equity – her domestic role, refurbishment work, and full-time care of the home and family did.
o He interpreted Art. 41.2 as supporting the view that marriage is a partnership, and a wife’s unpaid domestic work should be recognised in economic terms. This gave her an equitable interest in the family home.
- As noted by de Londras, this was a landmark decision, showing that Art. 41.2 could be read as conferring real socio-economic rights, not just aspirational values, potentially recognising and valuing unpaid care work within the home.
- The decision in BL v ML was not followed in later High Court cases such as JF v BF and EN v RN, the latter of which was upheld by the Supreme Court in 1991.
- The Supreme Court ultimately reversed BL v ML, holding that the High Court had created a new right unsupported by precedent and had misapplied Article 41.2. It clarified that Art. 41.2 protects the family from external interference and does not grant enforceable property rights between family members.
o Finlay C.J. stated that the judiciary could not use Art. 41.2 to confer a beneficial interest in the family home, as doing so would amount to a legislative act, which was beyond the court’s remit.
33
The future of Art 41.2
- On 17 February 2013, the Constitutional Convention voted to amend Article 41.2, making it gender-neutral to include all carers, both within and outside the home. It also recommended that the State provide a "reasonable level of support" to ensure carers are not forced by economic necessity to work. Although a referendum was proposed for May 2019, it has been postponed.
