FH.

This essay will argue that while the FMHPA is an important tool for protecting vulnerable spouses, it has
legislative gaps in S3, specifically the doctrine of notice. Moreover, the purchase money resulting trust offers
stronger protection for a spouse whose name is not on the title deeds compared to the protection provided by the
legislation.
Irish law provides significant protections for family property by art 41.1. that recognises the family as a key
societal unit. In The State v An Bord Uchtala, the court said that a 'family' is based on marriage. The Marriage
Equality Act 2015 allows same sex marriage. The 'family' is also protected in Art 8 and Art 12 of the ECHR.
The Family Home Protection Act 1976 was introduced in recognition of social and personal difficulties, in which
one spouse owned the family home and the other had no rights over it whatsoever (consent based approach). As
Margaret Fine-Davis has noted, the FHPA 1976 was one of significant legislative and administrative changes,
which had a profound impact on the role and status of women in Ireland.
S2(1) of the FHPA 1976 defines "family home" as a dwelling where a married couple ordinarily resides.
Moreover, family homes are defined by residence, not ownership. Therefore, even properties owned by companies
can be classified as family homes. The term "dwelling" includes any building, structure, vehicle, or vessel, or part
thereof. S3(1) provides that a spouse cannot convey any interest in the family home to anyone other than the other
spouse without their written consent; otherwise, the conveyance is void. This is considered a veto right, not a
property right. The consent is required for non-owning spouses only.
Under 3(1) consent requires: it must be (a) prior to the conveyance; and (b) in writing (there is no specific form
required); and (c) valid. As per BOI v Hanrahan the court ruled that in order for the consent to be valid it has to
be given before the conveyance. As per BOI v Smyth to be valid, the consent must be ‘free’ and ‘fully informed’
(Mrs. Smith is entitled to understand what she is consenting to; the Bank is obliged to ensure that consent was free
and fully informed). In Kyne v Tiernan (wife gave consent and in the couple of days received a proposal for
separation) the court ruled that if there is a consent for sale, additional consent for the execution of the conveyance
deed is not necessary. In the National Irish Bank v Graham, it was established that when consent for a mortgage
is needed and a conveyance is part of that, consent for one is required. However, if there are two separate
transactions, separate consent is necessary. Where the conveyance is made and there is no consent, the conveyance
can be declared void in court proceedings made within 6 years of the conveyance (do not apply if the non-owning
spouse is in immediate occupation).
However, the protection of s3 is not absolute. Exceptions to the requirement for consent: 1) conveyance by a
third party (e.g. judgement mortgages), 2) contracts executed prior to the act or 3) contract made prior to marriage,
4) conveyance where consent has already been given, 5) conveyance to the other spouse, 6) and conveyance to a
purchaser for full value. As per Wylie ‘the most important exemption’ is that a conveyance to a purchaser for full
value is not void, despite the absence of valid consent. A ‘purchaser’ is defined as a ‘person who in good faith
acquires an estate or interest in property’. In Somers v Weir, the SC ruled a “good faith purchaser” is one
without notice of either the lack of consent or the lack of valid consent, and must give full value to rely on this
exception. This incorporates the doctrine of notice, meaning a purchaser must not have actual, constructive or
imputed notice that property is a family home at the time of the conveyance. The purchaser in this case had
constructive notice and failed to check the agreement, thus the transaction was void due to lack of the wife's
consent.
Moreover, under S4 of FHPA the owning spouse can make an application to have the required non-owning
spouse’s consent dispensed when: (1) lack of sound mind OR cannot reasonably be located (2) They have
‘deserted’ or caused the owning spouse to desert (constructive desertion) (3) They have unreasonably withheld
their consent. As De Londras states, in such circumstances the court will examine 1) Needs and resources and
dependent children (1976 Act) 2) Nature of alternative accommodation, if presented. In R v R, a husband sought
to mortgage his family home to finance a second home for his lover and his wife refused to consent, citing
financial impracticality (husband claimed the denial was unreasonable). The Court deemed her financial concerns
valid (her refusal not unreasonable). In contrast, in SOB v MOB, the court ruled it was unreasonable for the ex-
wife to withhold consent to sell the family property, when an alternative accommodation would be adequate.
S5 of 1976 Act protects the interest of non-owning spouses in the family home against the owning spouse's
conduct and also considers dependent children’s loss (conduct that intends to cause future loss, has resulted in loss,
or would make the home unsuitable for habitation). In ED v FD Costello J held that where a husband deserts his
wife and children, the court should ensure that their financial position is protected, even if this means causing a
drop in the husband’s living standards; The husband had acted irresponsibly, but there was no evidence of
intention to deprive the wife. In DC v AC a barring order was granted on the ground of safety and welfare of the
spouse and children, but there was no positive evidence of intention to deprive. Under s12 a spouse can register a
notice stating that they are married to someone who has an interest in the property or land. Thus, the best
protection available for the spouse is to have their interest registered in accordance with S12 of the 1976 FHPA.
2. Equitable interest based on contribution
The Purchase Money Resulting Trust was developed to recognise existing beneficial interests of both parties. In
JC v JHC (house was paid by the husband but conveyed on both jointly names), it was held that when
property is jointly owned, but purchased by one party, the law presumes a resulting trust for the purchaser. The
court ruled that presumption of advancements operate here and the gift was intended. To rebut the presumption for
a resulting trust, there are two considerations: 1) where there is evidence of a gift; and 2) or under presumption of
advancements.
The presumption of advancement holds that a father/husband owes a duty, and if they transfer property to
the subject of that duty (wife/child), then it is understood to be in discharge of that duty. This contrasts with
the resulting trust, where a gift given without consideration is presumed to be held in trust for the donor, unless
there's evidence of gift intention. The doctrine of advancement was rejected in O'Malley v Breen and described as
“harks back to a different era”, the court declined to apply the doctrine involving an estranged couple and
investment property. Justice O’Connor could not determine the deceased's intentions regarding the property
purchased in 2000 due to lack of evidence (same principles applies for rebutting). The judgement underscored that
a party should not be disadvantaged by transactions made without their consent.
Direct contributions. In HD v JD it was held that direct contributions to the purchase price of property amount to
an equitable interest in favour of the contributing party (and tenancy in common will arise). In this case her direct
contribution was through a pooled account used to pay the mortgage, and her indirect contribution was her unpaid
labour in running a pub (family business).
Indirect contributions. In McC v McC, the court found that the wife's contribution to the purchase of furniture
for a new property did not amount to a direct or indirect contribution to the property's purchase (trust is inferred
when the contribution is significant enough to conclude that the acquisition of the house was a joint effort by the
spouses). She was only entitled to a share of the furniture's value. However, Henchy J endorsed the position that
when a wife's contribution is indirect, such as contributing to a general family fund, a trust in favour of the wife is
inferred, as she has relieved the husband's financial burden in purchasing the house
Argument. Therefore, this trust allows spouses to generate an equitable interest in the family home through
contributions to the purchase price, both direct and indirect (Heaney v Henay). This interest is further protected as
an overriding interest under the Registration of Title Act 1964 or under the doctrine of constructive notice when
coupled with actual occupation of the property, binding a purchaser or a mortgagee of the family home. Thus, a
preliminary analysis would suggest that the purchase money resulting trust represents much deeper and more
substantial protection for non-owning spouses than the mere right of veto afforded by the 1976 Act.
De Londras sees the 'intention' requirement as a 'counterbalance' to the idea of protecting against harm that hasn't
happened yet. But, when it's clear that the family home might be lost because of the actions of the spouse who
owns it, equity should lean towards stepping in. Therefore, the woman is still in quite vulnerable position and still
inadequately protected.
1976 act in the cases of Muinter v Crowley protected family homes from being sold to recover commercial debts
incurred by one spouse without the consent of the other. This upheld the act's objective and prevented wives, who
had no involvement in their husbands' business affairs and had not consented to the loans, from losing their homes.