Family Property Flashcards
ECHR Act 2003
- Courts are to interpret legislation and rules of law in the context of Ireland’s obligations under the ECHR (s2)
- Every organ of the state (excluding the Courts) is to perform its functions in a manner compatible with the State’s obligations under the ECHR (s3)
- Superior Courts can issue a ‘Declaration of Incompatibility’ that a law or the actions of a public body is incompatible with the ECHR (s5)
Family home
s2(1) FHPA 1976 Definition does not depend on ownership.
Residence: Couple must reside in the dwelling (=logement). Intention to reside will not suffice.
Dwelling
Dwelling s2(2) FHPA 1976
- It does not include property being used for commercial purposes (Family Law Act 1995, s54).
- Sometimes family homes will constitute part of a larger landholding i.e. farm or business premises. The Court can sever the land into ‘the home’ which will be protected by the Act and ‘the non-home’ which will not be protected – AIB v O’Neill [1995].
What is the right of veto of the non-owning spouse ?
s3(1): ): ‘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 subsections (2) and (3) and section 4, the purported conveyance shall be void’.
Exceptions:
Future consent: Spouse can also give ‘a general consent in writing to any future conveyance’ in respect of the FH
Onus (=the burden of proof): is on third party (i.e. the purchaser) to ensure that the consent of the non-owning spouse is real (Bank of Ireland v Smith [1996]).
Conveyance
s1(1) FHPA 1976
Conveyance is the act of transferring ownership of a piece of property from one party to another.
Conveyances of land often have two stages:
- Where there is a contract to convey title and the actual conveyance of the title: Consent to the contract = consent to the entire conveyance.
- Where there is a conveyance and a mortgage: Consent to the conveyance = consent to the mortgage.
Exceptions:
1. Where the conveyance was made by the legal owning spouse pursuant to an enforceable agreement that was entered into prior to the marriage s3(2)
2. If the purchaser is a ‘purchaser for full value s3(3)
3. Where a court determines that consent is unreasonably withheld s4
Time limit for conveyance
In principle: 6-year time limit to initiate proceedings to have a conveyance declared void by reason of lack of consent.
An exception: where a spouse has been in actual occupation of the land immediately before the end of the 6-year period, until the initiation of proceedings.
Presumption that consent is not void under s3 (1) FHPA unless declared so by a court.
Equivalent position civil partnership & civil partners
Equivalent position as provided under FHPA:
- Consent to conveyances in respect of the shared home (s28(1)).
- Exceptions (s28(2)). It has the same meaning given to ‘purchaser for value’ (s28(5)).
- Conveyance has the same meaning under the FHPA (s27).
- Dwelling also has a similar meaning (s. 27).
What about the notice and the purchaser ?
Under s3 (3)(a) FHPA, a ‘purchaser for full value’ takes a good title despite the lack of consent of the non-owning spouse.
Definition of ‘purchaser’ is in s3(6) FHPA: good faith requirement.
The doctrine is not identical to the doctrine of notice in equity:
Under FHPA, a purchaser with notice of the interest of the non-owning spouse takes no title at all, because the conveyance is void under s3, where no consent is given.
Constructive notice:
A purchaser must inquire of the vendor whether a property is a FH within the meaning of the FHPA.
Conduct depriving the spouse of an interest
Subsection 1 (future conduct)
- Conduct referred to has not yet resulted in the loss of the FH, but that it ‘may’ do so in future.
- The conduct need not affect residence. Consent must be carried out with intention to deprive the applicant spouse (and dependants) of residence-interpreted strictly by courts.
- Permits any order to be made by the court.
Order can be directed towards the other spouse or another person.
Subsection 2 (past conduct)
- Conduct has resulted in the deprivation of residence of the FH.
- Order for compensation.
- The order can be directed against the other spouse or by another person.
The effects of Domestic Violence
The right to possession of the FH by the legal owning spouse can be suspended by the issuance of a barring order (s.3 of the Domestic Violence Act 1996, as amended).
Applies to married couples, civil partners and cohabiting couples.
Cohabiting applicant must have a greater interest in the property that the respondent cohabitant (‘the property test’). Emergency barring order may be granted where the property test is not met.
A parent can apply for a baring order against an adult child who is not a dependent (s.3(1)(c)).
Types of breakdown of marriage
- Divorce
- Marriage can be terminated under Family Law (Divorce) Act 1996.
- Division of property done by two ways:
-> By Statute under Family Law (Divorce) Act 1996
-> In Equity - Judicial Separation
- Judicial separation can be granted under Family Law Act 1995
- Division of property done by two ways:
-> By Statute under Family Law Act 1995
-> In Equity
Judicial separation
Judicial Separation is where spouses apply to court for the court to decide the terms under which the couple will live separately. It is applied for in the Circuit Court or High Court, on one of a number of grounds.
The Family Law Act 1995 allows for a number of court orders to be granted as part of a decree of judicial separation.
- Property adjustment orders (s9)
- Order for sale (s10, as amended)
- Right to occupy (s10)
Property adjustement orders
s9 of the 1995 Act grants the court the power to make an order in respect of the adjustment of property.
In deciding whether to grant such an order, or another order, the court, ‘…shall endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as is adequate and reasonable having regard to all the circumstances of the case’. (s16).
Factors are to be taken into account (s16) –identical to those in the case of divorce. Notably, they include contributions, both financial and ‘by looking after the home or caring for the family’.
- JC v CC, unreported, Barr J, 1991- Barr J awarded a 50 per cent share in the FH to a wife who had made financial contributions and ordered the husband to continue paying annual mortgage and insurance payments in respect of the FH.
- VS v RS, unreported, High Court, Lynch J, 1991- Lynch J granted a declaration that the FH vested in the H and W as tenants in common in equal shares, without reviewing the contributions of the W.
Divorce
Art. 41.3.2 Constitution allows a court to grant a decree of divorce:
- where spouses have lived a part for two out of the previous three years (referendum in May 2019 to reduce the term)
- no reasonable prospect of reconciliation
- where proper provision is made for the spouses and the children, or other persons.
Property adjustment orders are granted under s14(1) Family Law (Divorce) Act 1996
Orders for sale (s15(1)(a)) and a right to occupy (s15(1)(a)) can also be granted.
The property adjustment orders for the divorce:
Specific factors to be taken into account by the court in granting an adjustment order, or another order under the 1996 Act (s20)- see next slide- same factors as in the case of judicial separation.
In deciding whether to make an order, and in determining its content, the court ‘shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned’(s. 20(1)).
Include financial and non-financial contributions (i.e. of a homemaker spouse).
Factors taken into account in the division of property
- Terms of the separation agreement (but these are not determinative)
- The income an earning capacity of the spouses, now and in the future
- The financial needs of the spouses, now an in the future
- Standard of living, so as to ensure that an equivalent standard of living is maintained
- The age and the duration of the marriage
- Physical or mental disabilities of the spouses
- Contributions made to the welfare of the family (not merely financial)
- Social welfare entitlements of each spouse
- The conduct of each spouse
