Family Property Flashcards
What is the main source of legislative protection afforded to spouses re family property in Ireland?
Family Home Protection Act 1976
What are the other sources of legislative protection afforded to spouses re family property in Ireland?
The Family Law Act 1995
The Family Law (Divorce) Act 1996
Succession Act 1965
Civil Partnership and Civil Rights and Obligations of Cohabitants Act 2010
Marriage Act 2015
What is the effect of the Family Law Act 1995?
In granting a judicial separation the court, on application of a spouse concerned or by a person on behalf of a dependent member of the family, may make a property adjustment order in relation to the property of either parties which is viewed as family property. (s.9)
The court may also make orders as to a right to occupy such property (s.10) or orders as to the sale of such property. (s.11)
What is the effect of the Family Law (Divorce) Act 1996?
Court is afforded similar rights as in the Family Law Act 1995, in this case in the context of a divorce proceeding.
Right to make property adjustment orders (s.14(1))
Right to make orders as to a right to occupy or sale (s.15(1)(a))
s.20 sets out factors to be considered to ensure proper provision in a family relational context by the court.
These include income earning capacity and other financial resources, financial needs, obligations and responsibilities, age of spouses, duration of marriage, whether either has a disability, contributions they have made to the welfare of the family, effect on earning capacity of their marital responsibilities, rights of any other person including a person to whom either spouse is remarried
What is the effect of the Succession Act 1965?
Right to appropriate family property
Marriage Act 2015 effect
Extends protection to same sex couples who get married
What is the main right afforded by the Family Home Protection Act 1976?
The right to have the consent of the non owning spouse sought and obtained before any use of the family home takes place (s.3)
If such a conveyance takes place without their consent it is void.
What constitutes a conveyance under the FHPA 1976?
s.1 A conveyance includes a mortgage, lease, assent, transfer, disclaimer, release, and any other disposition of property otherwise than by a will or donatio mortis cause.
National Irish Bank Ltd v Graham - consent to a conveyance also operates as consent to a mortgage
What constitutes consent under the FHPA 1976?
Prior written consent
- McMahon v McLoughlin
- Written agreement was made to sell and purchase land. Disagreement over supply agreement say the plaintiff seek specific performance of the contract.
- As the contract was made without the consent of the spouse and not re-executed when her consent was obtained it was void and no specific performance awarded.
Fully informed consent
-Bank of Ireland v Smyth
- Spouse consented to a mortgage over the family farm and farm house but was not told the family home could be lost through a default on the mortgage.
-As she did not understand the full consequences of consent being given it was not fully informed consent and therefore void.
- Onus was on the bank to prove there was sufficient consent
When can a third party be affected by a lack of consent in the meaning of the FHPA 1976?
Only equitys darling/ a bona fide purchaser for value is protected.
- Somers v Weir
- where a purchaser knew or ought to have known had he or his agent made reasonable inquiries that no spousal consent was obtained he will be held to have actual knowledge and the conveyance will be set aside as invalid
- in this case the husband lied and said the spouse consented in their separation agreement but the vendor and solicitor did not ask to see the document. This was held to be unreasonable and therefore they were fixed with the knowledge
What if consent is unreasonably withheld?
s.4 of the 1976 Act provides that the court may dispose of the consent of the spouse, but only where they consider its withholding unreasonable.
However, a court order must be applied for prior to a conveyance being entered into. Consent cannot be dispensed with retroactively.
When is the withholding of consent considered unreasonable?
Objective financial considerations
- R v R
- Wife refused to consent to a mortgage on the family home to be used to buy a house for her husband’s mistress as she believed he would not be able to keep up the payments and would put the family home in danger.
- Courts held that these objective financial concerns were completely reasonable
Suitable alternative accommodation
- SOB v MOB
- spouse was separated, living in a separate continent, and was provided with similar alternative accommodation.
- withholding of consent was considered unreasonable
What is a family home within the meaning of the 1976 Act?
s. 2 - a dwelling in which a married couple ordinarily reside
