The Gazette 1981

necessary. For example, a residence owned by a limited company may be a family home but a limited company cannot have a spouse and the question of consent or verification should not arise. Again, the property may have been the family home of a married couple but the Vendor may now be a widow or widower and there may be no person whose consent is needed. There is a mistaken impression that because a couple may now have a family home elsewhere, that the Act does not apply to the sale by a spouse of a former family home. Consent is needed in any such case. In investigating a title you are unlikely to overlook the necessity of checking each Deed since the Act to verify compliance with the Act. However, care must be taken to see that there are no outstanding claims by the spouse of a tenant or lessee under a letting or sublease of a family home. The Courts have. taken the view that consent cannot be given retrospectively. This seems reasonable in view of the word "prior" before the word consent. There have been many interesting cases already heard arising out of the Act. There are however other points which have not yet been clarified and are still the subject of some confusion. One of these is the question of whether a minor spouse can validly execute a consent. It is surprising to us how often this arises. The better opinions seem to be that a minor spouse can consent but the price of being wrong is so severe that many solicitors feel that they cannot take the risk and insist on an Order of the High Court being obtained to authorise the consent. This usually arises in the case of young couples buying their first house and of course they are usually the people who can least afford the extra expense of a Court Order. The Law Society have asked the Department of Justice to amend the Act to clarify this and the proposal seems to have been sympathetically received. Another question is whether consent arises in a sale by a personal representative in due course of administration. For example, if a married couple go to live with the wife's widowed mother. They share the expenses of the house or pay her rent. The widow dies and appoints the daughter executrix and universal legatee. If the daughter assents and sells as beneficial owner consent of her spouse will be needed. What happens if she sells as legal personal representative in due course of administration? The better opinions are that consent cannot arise on a sale by a personal representative qua personal representative. However, again the price of being wrong is such that many solicitors feel obliged to get a consent in such cases or a Statutory Declaration to verify that none is necessary. Some raise Requisitions as to whether the property is the family home of the beneficiaries under a Will or intestacy. On a sale by a personal representative this is nonsense. Another question is whether P. C. Moore's maxim "once a family home always a family home" is correct. For example, a man buys a residence in Dublin in 1960 and marries a few years later. The house is the couple's family home. They buy a new house in joint names in 1977 but the husband retains the former house as an investment, obtains planning permission and converts it into flats. Is consent needed if the husband wants to sell it now? It was hardly the type of case that the Act was intended to deal with. However, it has the two essential ingredients and most people take the view that consent is

Family Home Protection Act, 1976. The Family Home Protection Act, 1976, became law the 12th day of July 1976. The purpose of the Act was to prevent one spouse in whose sole name the family home is vested from dealing with the family home over the head of the other spouse in such a way as to deprive that spouse of her home. The Act was principally aimed at the errant husband who would be trying to sell or otherwise deal with the family home over his wife's head, but, of course, the converse would also be the case. The Act has a number of conveyancing consequences which are of vital importance to property Lawyers in that any "Conveyance" within the meaning of the Act which is in breach of the provisions of the Act since 12th July, 1976 is void. The Act is a short one and it is essential that the main clauses of the Act should be carefully read. In particular, for Conveyancing pruposes, the following definitions should be noted: (1) Conveyance is defined in Section 1 as "a mortgage, lease, assent, transfer, disclaimer, release, and any other disposition of property otherwise than by a Will or a donatio mortis causa and also includes an enforceable agreement (whether conditional or unconditional) to make any such conveyance and 'convey' shall be construed accordingly". Where all or any of these documents relate to a family home it is necessary to obtain the prior consent in writing of the spouse as otherwise the proposed document is void. (2) A family home is defined in Section 2 of the Act as: (0 "family home" means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving. (ii) In subsection (i) "dwelling" means: (a) any building, or (b) any structure, vehicle or vessel (whether mobile or not) "or part thereof, occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling". Section 3 contains the provisions which make a Conveyance in contravention of the Act void. It goes on to provide that no Conveyance will be void by reason of Section 3 if it is made to a Purchaser for full value who, in good faith, acquires an interest in the property. The Conveyancing consequences which are now becoming standard requirements flow from this provision because a Purchaser for full value will not be deemed to be a Purchaser in good faith unless certain reasonable enquiries are made. The rest of this Memorandum attempts to set out shortly what these enquiries are in conveyancing transactions and how the results of these enquiries should be verified. The Act does not just apply to private houses. For example, a residential public house, a residential shop and a farmhouse can all come within the definition. If the Act does apply to a transaction there are two essential ingredients. The first is whether the house is or was a family home for some period of time and the second is whether there is a spouse whose consent is

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