The Gazette 1981

APRIL 1981

GAZETTE

(Continued from p. 107)

vantage associated with all judicial lawmaking: its retrospective operation. When lenders in future seek possession in respect of property mortgaged before the Family Home Protection Act, 1976, came into force on July 12, 1976, equitable claims from borrowers' wives are sure to be made. Purchasers, as distinct from lenders, may be thought to be in an enviable position, since they, and not vendors subject to equitable claims, will be in occupation once a sale is closed, as it should be, with vacant possession. However, it has already been held, in London and Cheshire Insurance Co. Ltd. v. Laplagrene Property Co. Ltd. [1971] Ch. 499, that claimants in actual occupation at the relevant time (that of registration) do not lose their claims if they go out of occupation subsequently. A further pitfall has become more clearly established since Williams

would-be purchaser (or mortgagee) upon notice of a claim adverse to the registered owner. On the con- trary, I expect to find . . . as I do find . . . that the statute has substituted a plain factual situation for the uncertainties of notice, actual or constructive, as the determinant of an overriding interest." The implications for this country? It is a tribute to the adaptability and resourcefulness of the English bench that, in Williams & Glyn, it has, by judicial means, secured for wives almost that degree of protection obtained for them in this country by our Family Home Protection Act. Of course, the decision falls short by being unable to protect that class of married women, dwindling but perhaps most deserving of protection — the "bare" wives whose contributions are invaluable in everything but economic terms. It would, however, be rash of the Irish practitioner to assume that, since the Oireachtas has, to say the least of it, forestalled the House of Lords by its statutory protection of the family home against unilateral alienation, these English decisions are of little more than academic interest here. This developing jurispurdence does more than defend occupying spouses, particularly wives. Mrs. Hodgson, it will be recalled, was not related at all to the lodger who gulled her into transferring her house to him. Furthermore, one aspect of the decisions which seems so far to have escaped the attention of com- mentators is the possible application of the principle underlying the decisions to property other than dwelling- houses and family homes. There must be thousands of small businesses and farms in this country and no doubt in England which are legally owned by one spouse but to the purchase of which the other spouse has contributed. In many such cases the latter is as clearly "in actual occupation" as the former. Moreover, where the husband (supposing him to be the legal owner) is an invalid, or an idler or drunkard, or has another job, the work of looking after such enterprises will devolve upon her, and she may indeed bp the only one of the two "in actual occupation." Whilst the prospect that such an occupying spouse may have an "overriding interest" in such non-residential property is' not touched on in any of the judgments or speeches, this result would seem to follow, in principle, from the decision. It would not be a distortion, it is sub- mitted, to suggest that the previously quoted remarks of Lord Wilberforce, to the effect that the appeals did not involve any question of matrimonial law, could be invoked to support the submission that Williams & Glyn is not limited territorially to the matrimonial home (prescinding for the moment from the fact that Hodgson was not a matrimonial case at all). Except for the fact that wives are known to contribute more frequently to the ac- quisition of the home, there is no difference in legal principle between a home and a business or farm. The de- cision represents a further step in the acquisition by wives of a legal personality independent from that of their husbands and could not have intended to give the character of a sanctuary to homes, matrimonial or otherwise.

Disadvantages Perhaps the chief drawback of the decisions is a disad