The Gazette 1994

GAZETTE

NOVEMBER 1994

in a family home by means of this deed. Thus there was no need for the prior consent in writing of any of their spouses and the mortgage was not void under s. 3. (3) The equitable interest of a purchaser which arises prior to com- pletion by virtue of a contract for the sale of land could not be regarded as having transformed any dwelling on the land into the family home of either the third or fifth named defendant so as to confer rights on their wives before the taking of possession. (4) The existence of unresolved disputes in respect of the second, third and fourth mortgages did not affect the validity of the first mort- gage or the plaintiff's right to exercise the power of sale arising thereunder and seek an order of possession so as to enforce that right. Reported at [1994] 1 ILRM 372 Anthony Lowth and Others v. Minister for Social Welfare and the Attorney General: High Court 1989 No 9622P (Costello J) 16 December 1993 Constitution - Equality - Social welfare - Deserted wife's benefit - Whether deserted husbands were entitled to same benefits and allowances as deserted wives - Social Wel- fare (Consolidation) Act 1981 - Constitu- tion of Ireland 1937, Articles 40.1, 41.2 - Council Directive 79/7/EEC Facts After being deserted by his wife the plaintiff had to give up his employ- ment so that he could look after their two young children. His entitlement to unemployment benefit lasted for a pe- riod of 390 days. Thereafter he was paid unemployment assistance and on 20 November 1991 he qualified for lone parent's allowance. Unlike the deserted wife's benefit payable under the Social Welfare (Consolidation) Act 1981, the allowances to which the plaintiff be- came entitled were means tested. Fur- thermore, the payments made in favour of the plaintiff were at rates lower than the rate which would have been pay- able to a deserted wife in circumstances similar to those of the plaintiff. The plaintiff claimed that as he and his chil- dren had received less income than would have been received by a deserted wife and her children, he had been dis- criminated against by reason of his sex contrary to Council Directive 7 9 / 7 / EEC and that insofar as the 1981 Act made provision for deserted wives but not for deserted husbands in similar situations it was unconstitutional.

plaintiff's claim: (1) A benefit or allow- an:e only came within the scope of Council Directive 7 9 / 7 / EEC if it consti- tuted the whole or part of a statutory scheme which protected against the risk of sickness, invalidity, old age, acci- dents at work, unemployment or was a form of social assistance having the same objective. As the deserted wife's benefit did not constitute a form of so- cial assistance falling within the scope of the directive, it did not apply to the impugned provisions of the 1981 Act. (2) Article 40.1 of the Constitution does not guarantee that all citizens will be treated equally in all circumstances. In- equalities in the law may be permissible provided that the inequality flows from or is related to a difference of capacity, physical or moral, or to a difference of social function. Quinn's Supermarket Ltd. v. Attorney General [1972] IR 1 con- sidered. (3) A legislative inequality will not be set aside as being repugnant to the Constitution unless the court con- siders that the law is based on a distinc- tion between men and women which cannot be justified by the factual cir- cumstances. Murphy v. Attorney General [1982] IR 241 and O'G. v. Attorney Gen- eral [1985] ILRM 61 considered. (4) The Oireachtas was entitled to conclude on the facts as established that married women fulfilled a social function differ- ent to that of married men and further that married women who were de- serted by their husbands required greater income support than married men who were deserted by their wives. The distinction made in the impugned legislation was not based on any as- sumption that deserted husbands were to be treated as in some way inferior to deserted wives, but was founded on a factual assessment by the Oireachtas of the greater needs of deserted wives. The Oireachtas, in the light of Article 41.2 of the Constitution, which recognised the special role of wives and mothers in Irish society, was not acting unreason- ably when it sought to give special fi- nancial support to deserted wives who were also mothers. Dennehy v. Minister for Social Welfare, High Court (Barron J) 26 July 1984 applied. Reported at [1994] 1 ILRM 376

National Irish Bank Ltd v. Robert Graham, Sarah Graham, Eric Samuel Graham, Charis Graham and Robert George Graham: High Court (Costello J) 8 November 1993 Real Property - Purchase of land - Execu- tion of deed of mortgage by purchasers prior to taking possession - Whether interest in family home conveyed by means of deed of mortgage - Need for residence by spouses before dwelling can constitute family home - Family Home Protection Act 1976, ss. 2, 3 Facts On 29 August 1989, the first, third and fifth named defendants pur- chased a large estate of approximately 3,000 acres with the aid of a loan granted by the plaintiff. The loan was secured by a deed of mortgage dated 9 August 1989 which had been executed by the first, second, third and fifth named defendants and their solicitor who had purchased the property in trust for them. At this time the first and second named defendants were mar- ried to each other, the third and fourth named defendants were married to each other and the fifth named defen- dant was unmarried. However, the lat- ter got married on 17 November 1990. None of the mortgagors obtained pos- session of the land until after comple- tion of the purchase and execution of the mortgage. On 21 February 1991 the mortgagors, with the consent of the plaintiff, transferred some of the land between themselves and executed three further mortgages in favour of the plaintiff. The mortgagors defaulted in repayment of the loan and the plaintiff sought an order of possession so that it could exercise its power of sale under the first mortgage. The defendants claimed that the four mortgages were void under s. 3 of the Family Home Protection Act 1976. Held by Costello J in making an order for possession but excluding certain parts of the land which were subject to contracts of sale entered into with the plaintiff's consent: (1) A house becomes a family home within the meaning of s. 2 of the 1976 Act only when a married couple take up residence. There was no basis for interpreting the definition as including a dwelling in which a mar- ried woman intended to reside at the date of its purchase. (2) At the time when the first mortgage was executed four of the mortgagors were spouses within the meaning of s. 3. However, as none of the mortgagors were in posses- sion of the land when they executed this mortgage none of them could be re- garded as having conveyed an interest

Held by Costello J in dismissing the

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