The Gazette 1980

GAZETTE

DECEMBER1980

unconditional consent, although the wife may have believed that the husband was going to proceed with the purchase of the house in Dundrum. The Court did not accept that the dispute between the husband and the wife as to the disposition of the purchase price, which arose after the consent, and that therefore that consent of 3 July, 1978 was sufficient to comply with Section 3 of the said Act of 1976. (2) That while on a strict inter- pretation of Section 3 of the said Act of 1976, it could be said that there mast be a consent, both to the Contract and to the final con- veyance, it could not be believed that it could have been the intention of the Legislature to re- quire two consents for the completion of one transaction and thus leave a purchaser in the position of conducting all the work and incurring all the expenses necessary for the completion of a purchase only to find that a spouse had changed his or her mind about giving con- sent and required that the whole transaction be abandoned. S.K. v. P.T. and A.T. — High Court (per McWilliam, J.) — 15 July 1980 — unreported. EVIDENCE When evidence is given under oath by an expert witness that he holds a particular qualification and is entitled to practice a particular profession, when that expert would be commhing an offence if he were not so entitled or qualified to so practice, then there is a rebuttable presumption in favour of the expert that he is so qualified until the contrary is proven. The Defendant was prosecuted, as owner of a herd of cattle, for breach of the Brucellosis Testing Regulations, (S.l. 120 of 1966) made pursuant to the Diseases of Animals Act, 1966, for failing to present for brucellosis testing an eligible animal, that being an animal not being a reactor from a previous test or an animal deemed to be a reactor under the Bovine Tuberculosis (Attestation of the State) Order 1965. For the purpose of carrying out these tests there is a statutory provision for the

Negotiations proceeded between the husband's solicitors and the wife's solicitors as to terms on which the wife would endorse her consent, but without success. The Plaintiff and the wife had had three meetings between June and the end of August, 1978 and at the last meeting the wife had asked for a further week to complete and get out of the family home, but did not suggest that she was not going to get out at all. The Court felt that it seemed to follow from this that the wife did not suggest that she had not intended to consent to the sale or that she thought the consent was conditional on the husband purchasing a house in Dundrum, Co. Dublin, (on which the Defendants had put a small deposit), or that she thought that the consent was, for any reason, not final and binding when she signed the letter of 3 July 1978. Presumably because of the matrimonial situation the husband did not proceed with the purchase of the house in Dundrum and that left the wife in the position, as she stated in evidence, that she "had nowhere to go and could do nothing about it". It was argued by the Defendants that the consent of the wife was conditional on the husband purchasing the house in Dundrum. It was also argued that if the consent were held to have been unconditional, a further consent in writing was necessary for the actual conveyance to the Plaintiff and that the Court should refuse to make an order dispensing with the wife's consent under section 4 of the said Act of 1976 as it was not unreasonable for the wife to refuse consent having regard to the provisions of Section 4(2) of that Act, which provides as follows: "the Court shall not dispense with the consent of the spouse unless the Court considers that it is unreasonable for the spouse to withold consent, taking into account all the circumstances including, (a) the respective needs and resources of the spouses and of the dependant children (if any) of the family . . ." Held (per McWilliam, J.): (1) That the consent of 3 July 1978 was intended to be an

RECENT IRISH CASES

CONVEYANCING

Family Home Protection Act 1976 — consent of spouse to conveyance not necessary where consent already given to contract. The Defendants (a husband and wife) negotiated the sale of their family home to the Plaintiff. The wife was reluctant to attend the Husband's solicitors' office to execute the standard form of consent endorsed on the contract, dated 20 July, 1978, but signed a letter addressed to the husband's solicitors drafted by the husband unequivocally consenting to the sale, on 3 July 1978. The solicitors for the husband informed the solicitors for the Plaintiff of the receipt of this letter and stated that it w<$uld be furnished in lieu of an endorsement on the contract. Domestic difficulties arose between the Defendants themselves and on 11 July 1978 the Husband's solicitors wrote a letter to the wife which letter did not contain any reference to the sale, but which letter included: "as you are already aware, the Family Home Protection Act, 1976 prevents the sale of the family home by either spouse without the consent of the other spouse. I would recommend, therefore, that both you and your husband execute separate deeds of renunciation of your rights under this Act in order to protect any future property transactions by either party". On the same day, the solicitors for the husband wrote a somewhat similar letter to the husband. The wife subsequently engaged separate solicitors to whom the husband's solicitors wrote on 14 August 1978 to say that the wife had informed them that she was not prepared to execute a Family Home Protection Act declaration and endorse her consent on the deed (to the Plaintiff). This letter contained the following statement: "Your client (i.e. the wife) did consent to the sale".