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Family Law Property Law

The Family Home/Shared Home/Cohabiting Couples

The Family Home Protection Act, 1976 prevents one spouse, in whose sole name the family home was vested, from dealing with the property without the knowledge and/or consent of the non-owning spouse.

Note: The Family Home Protection act 1976 does not confer an interest in the property on the non owning spouse; it protects that spouses right to reside in the family home. It does this by declaring void any conveyance by the owning spouse, where the consent of the non owning spouse has not been obtained.

There is no differentiation between husband or wife and section 3(1) Family Home Protection Act, 1976 states:

3.—(1) Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections (2) and (3) and section 4, the purported conveyance shall be void.
    (2) Subsection (1) does not apply to a conveyance if it is made by a spouse in pursuance of an enforceable agreement made before the marriage of the spouses.
    (3) No conveyance shall be void by reason only of subsection (1)—
    (a) if it is made to a purchaser for full value,
    (b) if it is made, by a person other than the spouse making the purported conveyance referred to in subsection (1), to a purchaser for value, or
    (c) if its validity depends on the validity of a conveyance in respect of which any of the conditions mentioned in subsection (2) or paragraph (a) or (b) is satisfied.
    (4) If any question arises in any proceedings as to whether a conveyance is valid by reason of subsection (2) or (3), the burden of proving that validity shall be on the person alleging it.
    (5) In subsection (3), “full value” means such value as amounts or approximates to the value of that for which it is given.
    (6) In this section, “purchaser” means a grantee, lessee, assignee, mortgagee, chargeant or other person who in good faith acquires an estate or interest in property.
    (7) For the purposes of this section, section 3 of the Conveyancing Act, 1882, shall be read as if the words “as such” wherever they appear in paragraph (ii) of subsection (1) of that section were omitted.

So, the prior written consent of any non-owning spouse must be obtained prior to any conveyance of the family home since 1976. (Note: ‘conveyance’ includes mortgage)

However, section 54 of the Family Law Act, 1995 imposes a six year time limit within which proceedings must be taken by the non-owning spouse to have a conveyance declared void:

Proceedings shall not be instituted to have a conveyance declared void by reason only of subsection (1) after the expiration of 6 years from the date of the conveyance.

An important point to note arising from a 1986 High Court case, Barclays Bank Ireland Limited v Carroll, is

  1. the right is personal to the non owning spouse
  2. the stipulation that a conveyance is void should be interpreted as “voidable” at the instigation of the non owning spouse.

Exceptions

There are four exceptions provided for in section 3(1) above:

  • Agreements made in contemplation of marriage
  • Conveyance to a bona fide purchaser for full value (the purchaser must act in good faith-this means that the purchaser must make proper and reasonable enquiries and inspections to ascertain the position. This means that a solicitor acting for a purchaser must carry out all necessary investigations to clarify the position concerning the family home. Failure to do so will leave his client open to a challenge from the non-owning spouse)
  • Conveyance of an interest by a person/body other than a spouse (eg mortgagee bank/lender)
  • Where a Court orders the sale of the home in a judicial separation.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

This act creates two legal relationships:

  1. the civil partnership; and
  2. qualified cohabitants

Civil Partners and the shared home

Civil partners are defined in section 3 as

3.— For the purposes of this Act a civil partner is either of two persons of the same sex who are—

 

(a) parties to a civil partnership registration

3.— For the purposes of this Act a civil partner is either of two persons of the same sex who are—

(a) parties to a civil partnership registration that has not been dissolved or the subject of a decree of nullity, or

(b) parties to a legal relationship of a class that is the subject of an order made under section 5 that has not been dissolved or the subject of a decree of nullity.

has not been dissolved or the subject of a decree of nullity, or

 

(b) parties to a legal relationship of a class that is the subject of an order made under section 5 that has not been dissolved or the subject of a decree of nullity.

Protections for civil partners are set out in section 28 of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

This protection mirrors the protection afforded to spouses in the Family Home Protection Act 1976.

There are two exceptions to the protection afforded by section 28:

  1. a conveyance made pursuant to an enforceable agreement between civil partners
  2. a conveyance made to a purchaser for full value

What is a conveyance?

“conveyance” includes 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; (Section 1 Family Home Protection Act 1976)

What is a Family Home and a shared home?

A family home is defined in section 2 Family Home Protection Act, 1976 is a dwelling in which a married couple ordinarily resides. However a family home also includes the former residence of a couple who are separated as well as the current home of a married couple.

It also includes a dwelling in which a spouse is residing having been forced to leave the family home by the other spouse.

2.(1) In this Act “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.
  (2) In subsection (1) “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.

A shared home is defined in section 27 of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010:

shared home” means—

(a) subject to paragraph (b), a dwelling in which the civil partners ordinarily reside; and

(b) in relation to a civil partner whose protection is in issue, the dwelling in which that civil partner ordinarily resides or, if he or she has left the other civil partner, in which he or she ordinarily resided before leaving.

Prior Written Consent

Where the property being sold is jointly owned by a married couple, no spousal consent is required to a conveyance.

The spousal consent must be prior to the purported conveyance and be in writing.

It is also important that the consent is informed-the spouse must know what he/she is consenting to.

The need for spousal consent can be dispensed with by a Court in certain circumstances (section 4(1), Family Home Protection Act, 1976)

4.—(1) Where the spouse whose consent is required under section 3 (1) omits or refuses to consent, the court may, subject to the provisions of this section, dispense with the consent.
    (2) The court shall not dispense with the consent of a spouse unless the court considers that it is unreasonable for the spouse to withhold consent, taking into account all the circumstances, including—
    (a) the respective needs and resources of the spouses and of the dependent children (if any) of the family, and
    (b) in a case where the spouse whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security of tenure in the family home and in the alternative accommodation.
    (3) Where the spouse whose consent is required under section 3 (1) has deserted and continues to desert the other spouse, the court shall dispense with the consent. For this purpose, desertion includes conduct on the part of the former spouse that results in the other spouse, with just cause, leaving and living separately and apart from him.
    (4) Where the spouse whose consent is required under section 3 (1) is incapable of consenting by reason of unsoundness of mind or other mental disability or has not after reasonable inquiries been found, the court may give the consent on behalf of that spouse, if it appears to the court to be reasonable to do so.

Generally, this occurs where a spouse is unreasonably withholding consent.

The Family Home Protection Act, 1976, the Judicial Separation and Family Law Reform Act, 1989 and the Family Law (Divorce) Act, 1996  grant powers to Court to deal with the family home which it does by way of property adjustment orders and/or orders for the sale of the family home.

A Court also has power, pursuant to section 5, Family Home Protection Act, 1976 to make any order in relation to the property where it is of the view that the conduct of one spouse could lead to the loss of the family home.

Where a Court makes any property adjustment order in respect of the property in a divorce or judicial separation, the Registrar of the Court is obliged to register the order as a burden on the folio with Land Registry or in the Registry of Deeds.

Queries to be carried out in a conveyance

A purchaser, in order to be considered a “bona fide purchaser for value without notice” and to avoid a conveyance being declared void, must carry out certain enquiries.

  1. A statutory declaration from the vendor and his spouse/civil partner as to the family law status of the property being sold should be obtained
  2. searches must be carried out to see if any legal proceedings have been commenced
  3. the standard Law Society requisitions on title should be answered by the vendor’s solicitor

Particular enquires should be carried out where

a) the vendor sells as personal representative
b) where the vendor is a company
c) where there is a dispute between spouses or civil partners
d) where the vendor is selling under a power of attorney

Family Law Act, 1981

This act covers 1) engagement gifts and 2) broken engagements.

Where two persons are given a property in contemplation of marriage there is a presumption of joint tenancy.

Where a broken engagement arises the same protection enjoyed by a spouse exists where either party has a beneficial interest in the property.

Power of Courts to deal with property

Courts are empowered byFamily Home Protection Act, 1976 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to make any order it sees fit when one of the parties is guilty of behaviour which could lead to the loss of a family home or shared home.

The Judicial Separation and Family Law Reform Act, 1989 and the Family Law (Divorce) Act, 1996 allows courts to make property adjustment orders when granting judicial separation or divorce.

Qualified Cohabitants

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 protects qualified cohabitants as well as civil partners.

Section 172 of the act defines cohabitants, qualified cohabitants, and a dependent child.

Any qualified cohabitant can apply to court for any or all of the following:

  1. a property adjustment order
  2. compensatory maintenance order
  3. a pension adjustment order

Cohabitants, deeds of waiver, deeds of confirmation

The Law Society recommends best practice to solicitors and the recommendation regarding a cohabitant who has no equity in a property should make a family law declaration to that effect for a conveyance or mortgage.

Where a cohabitant has equity in property but is not on title, or if there is any doubt as to whether he/she has equity, the family law declaration should reflect this and he/she should execute a deed of confirmation in favour of the purchaser or lender. And he/she should be independently advised by a solicitor.

Categories
Family Law

Ancillary Orders in Judicial Separation and Divorce

judgment-mortgage

The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).

The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.

The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.

An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.

Custody and access orders

Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.

It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.

Financial Provision on Marriage Breakdown

Financial provision can be made on the breakdown of a marriage under the following broad headings:

  • maintenance
  • property
  • succession.

Maintenance

The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.

This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.

Three types of maintenance order can be made under the Family Law Act, 1995:

  • a periodical payments order
  • a secured periodical payments order
  • a lump sum payment order.

The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.

All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…’ Learn more about maintenance orders here.

Property-The Family Home

The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.

When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.

Property Adjustment Orders and Preliminary Orders

Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.

Courts have the power to make the following orders on separation or divorce :

I.    Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)

II   Property adjustment orders

1. The property to be transferred from one spouse to another or to another person

2. The reduction or extinguishment of any interest that a spouse has in the property

3. The settlement of the property to either spouse

However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.

The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.

All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.

Property adjustment orders can also be made in respect of all types of property, not just the family home.

Succession rights

A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.

However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.

This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.

However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.

Pension adjustment orders

The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.

However if you remarry you are prevented from applying for such an order.

It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.

If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.

If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.

The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.

Factors the Court Considers When Making Orders on Divorce and Judicial Separation

The factors the Court will consider when making these orders are

I.     The actual and potential financial resources of both spouses

II.     The actual and likely financial needs, obligations and responsibilities of both spouses

III.     The standard of living of the spouses before the separation or divorce

IV.     The length of marriage and the ages of the spouses

V.     Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family

VI.     Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage

VII.     Statutory entitlements-any benefit or income either spouse is entitled to in law

VIII.     Conduct-this is not a hugely important factor unless the conduct is egregious

IX.     The accommodation needs of both spouses

X.     Any separation agreement entered into by the spouses and which is still in effect

All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.

It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.

Procedure in the Circuit Court and High Court

The Circuit Court and the High Court have jurisdiction to hear

  • applications for divorce
  • decrees of judicial separation
  • applications for orders under the Family Law Act, 1995
  • applications for decrees of nullity.

Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).

Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.

Discovery

Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.