Family Property Flashcards
Why is family property important?
It protects the spouse’s right of residence. This is important because traditionally the non-owning spouse needed to be protected and now legislation has intervened to ensure that the family home is not sold by the owning spouse to the detriment of the non-owning spouse.
Family Home Protection Act 1976 (FHPA)
Section 2:
this section simply outlines the scope of the application of FHPA. For our purposes, the definition of a family home (FH, and any reference to FH is applicable to a shared home as well as per the 2010 Act, see below) is: primarily, a dwelling in which a married couple ordinarily reside. This definition is extended to mean a building or part of a building occupied as a spare dwelling and including a garden or land usually occupied with the dwelling as subsidiary and ancillary to it required for amenity or convenience and that which is not being used for commercial purposes
Section 27 Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010 (2010 Act) mirrors this definition for civil partners (CPs). The phrase ‘ordinarily reside’ does not include the premises where the couple intended to reside: National Bank v Graham. As the definition is so wide, in practice, declarations also are given for holiday homes i.e. that they are not the shared home.
FHPA Section 3:
operative section for consent of the non-owning spouse i.e. a spouse cannot transfer an interest in the FH without the consent of the non-owning spouse. This consent must be in writing, must be prior (Nestor v Murphy), and must be valid i.e. must be voluntary and fully informed.
In BOI v Smyth: husband mortgaged lands for debt, and his wife was required to give consent. The bank making the loan explained why consent was required but did not explain that if the husband went into arrears the FH could be possessed. She also did not get independent legal advice. SC invalidated her consent, noting that BOI was fixed with constructive notice of her lack of understanding and invalidity of consent. Being on notice to lack of consent refers to good faith i.e. the purchaser for value buys the property in good faith that they are not affecting any rights of the non-owning spouse: Somers v Weir (as they are on notice due to the doctrine of notice, they should make their own enquiries).
AIB v Finnegan: purchaser will have to prove that he did not have notice that the property was a FH. This section does not however create a property right for the non-owning spouse and this is well established by case law.
Barclays Bank v Carroll: only the non-owning is afforded protection under FHPA i.e. the right is personal to them and transactions are voidable at their behest only. Hamilton v Hamilton: 6 year time limit to declare conveyances void, which runs from the date of the conveyance.
Section 28 2010 Act: same protection to the non-owning CP.
There are a number of notable exceptions to the rule to require consent including:
(a) pre-nuptial agreement;
(b) conveyances to a purchaser for full value (although see point on notice above);
(c) conveyance of an interest by a person other than a spouse;
(d) court orders in judicial separation when the FH is vested in one spouse following a separation.
FHPA Section 4:
times when you can dispense with consent (Section 29 2010 Act correlates directly to this).
There are broadly 3 areas:
(i) where the non-owning spouse is of unsound mind;
(ii) where due enquiry has been made and the spouse cannot be located;
(iii) where the non-owning spouse has unreasonably withheld consent.
An application must be made to cts if claiming under this section.
R v R: wife’s refusal to consent was not considered unreasonable where the husband was involved with another woman and sought to mortgage the FH to pay his debts.
FHPA Section 5:
protection from the behaviour of the spouse i.e. where they are engaging in such conduct as would lead to the loss of any interest in the FH or render it unsuitable for habitation as a FH. Ct makes an order when it is of the view that one spouse is guilty of conduct that could lead to the loss of a FH. This correlates to Section 30 2010 Act.
FHPA Section 7
provides protection to the non-owning spouse against landlords and mortgagees (banks). Here, cts can stay proceedings where the non-owning spouse is willing to pay the arrears. A mortgagee should not go into possession of a FH without first applying to ct. This correlates to Section 32 2010 Act.
FHPA Section 9
allows the ct to restrict the disposal of chattels.
This correlates to Section 34 2010 Act.
2010 Act
Section 3
defines a CP i.e. adults of the same sec who are parties to a civil partnership registration. This section also defined a ‘shared home’ as opposed to a FH.
Since 16 November 2015, (Marriage Act 2015) it is possible for same-sex couples to get legally married and to have the same rights and obligations towards each other as opposite-sex married couples. It is also possible for a CP to marry.
2010 Act Section 172
defines a co-habitant as one of 2 adults (whether of the same or opposite sex) who live together as a couple in an intimate and committed relationship who are not related to each other within the prohibited degrees of relationship or married to each other or civil partner’s to each other for a period of 5 years or 2 years where they have become the parents of dependent children. A couple can opt out of the protections of the 2010 Act via a cohabitant agreement which will only be ignored by a ct in exceptional circumstances which would lead to a serious injustice.
Divorce or separation:
if agreement cannot be reached as to who will occupy and own the FH, ct can make an order referred to as a property adjustment order. In making a property adjustment order, ct will consider all the family circumstances and will consider the welfare of a dependent spouse/civil partner and any dependent children. If the order is in the scheme of separation, the Family Law Act 1995 Section 9 applies, and in the scheme of divorce, the Family Law (Divorce) Act 1996 Section 14 applies.
Death:
on the death of a spouse or CP, the Succession Act 1965 Section 111 outlines the legal right share i.e. the entitlement which only applies in a testate situation (there is a will), this is half for a spouse, and if children, one third. In an intestate situation (no will), the surviving spouse is entitled to two thirds of the estate if the deceased has children; if the deceased has no children, the surviving spouse is entitled to the entire estate.
Section 56 Succession Act 1965 provides for the right of surviving spouse to require dwelling and household chattels to be appropriated i.e. the surviving spouse to request the personal representative to appropriate the dwelling in which the surviving spouse ordinarily resides if this property is part of the estate of the deceased person. This appropriation will be towards the satisfaction her legal right share.
There are 4 ways by which a spouse ceases to be a spouse/CP for Succession Act 1965 purposes.
(i) renunciation under Section 113 Succession Act 1965 before or after marriage by way of a written contract;
(ii) in a separation, by way of a property adjustment orders and the extinguishment of succession rights under the 1995 Act;
(iii) divorce under the 1996 Act e.g. the subsequent marriage of a testator will have the will revoked by the subsequent marriage of a testator; and
(iv) Section 120 Succession Act 1965 provides for the unworthiness of the surviving spouse to succeed i.e. if they are a murderer.
