The Gazette 1985

GAZETTE

APRIL 1985

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"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." Again allowing the extension of "spouse", the central question resolves itself into what degree of "protection" must be necessary before a former non-owning cohabitant can claim a right to withhold consent to a disposition of property. Arguably the only "protection" so required is for an equitable interest arising under a constructive trust, which, in certain instances, the rules of equity already safeguard. (ii) Even if a right to withhold consent to a disposition of property is permitted a non-owning cohabitant under limited circumstances, then, by corollary with section 4 of the 1976 Act, the owning cohabitant could seek a court order dispensing with the other's consent where it was being unreasonably withheld. Demonstrably this would be the case if such interest as the non-owning cohabitant had acquired could be otherwise protected, or the non- owning cohabitant had been the one opting to decamp. (iii) Section 5 — as indeed are most of the sections — of the Family Law Act 1981 is limited in its scope to parties to an agreement to marry that has been terminated. In this jurisdiction it appears still to be the case that engaged couples rarely live together so that, in the classic situation to which section 5 is designed to apply there can scarcely ever be, by definition, a family home. (iv) Even so, were engaged couples to cohabit it would still be inconsistent with section 2 of the 1981 Act, which denies to an agreement to marry any contractual status, if section 5 of that Act were to attract all the revolutionary rights inherent in the Family Home Protection Act 1976. Furthermore, there is also the danger that such construction would run foul of Article 41 of the Constitution, which recognises as pre-eminent, and vouches to safeguard, the institution of marriage. Hence, it is submitted that whatever application the Family Home Protection Act 1976 may have under section 5 of the Family Law Act 1981 must be limited to cases involving formerly engaged couples who have lived together, and where the non-owning party had some interest in the property requiring protection. e) The Succession Act 1965 The consequences of the application of the Succession Act 1965 need little elaboration. Manifestly the most relevant sections are those which treat of the surviving spouse's legal right share (section 111), the surviving spouse's right of intestate succession (section 67) and the surviving spouse's right under certain circumstances to require the deceased spouse's personal representative to transfer to him or her the principal family residence in part or total satisfaction of the legal right share (section 56). The arguments against incorporating the Succession Act are straightforward.

WOODLEIGH HOUSE. HOLLYBANK AVENUE. RANELAGH D.6

Official Robemakers To:- The Incorporated Law Society of Ireland also N.U.I. N.C.E.A. N.I.H.E. Q.U.B. We cater for all English universities and the Inter-Collegiate code of North America and Canada.

(i) It would be an extraordinary result if the mere fact of engagement were to attract the reciprocal rights

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