Bank of Ireland v Smyth

Judgment Date01 January 1996
Neutral Citation[1995] IESC 3
CourtSupreme Court
Docket Number[S.C. No. 129 of 1993]
Date01 January 1996



[1995] IESC 3

Hamilton C.J.

Egan J.

Blayney J.






Alienation - Family home - Condition - Consent - Spouse - Registered land - Charge - Consent of wife to charge executed by husband to bank - Bank sought possession of land - Bank obliged to prove that wife's consent was fully informed - (129/93 - Supreme Court - 15/11/95) - [1995] 2 I.R. 459

|Bank of Ireland v. Smyth|



Registered land - Chargeant - Possession - Claim - Family home - Charge executed by defendant husband affecting property including family home - Consent to charge executed by defendant wife - Validity of wife's consent contested - Chargeant failed to ex plain transaction to wife - Wife's mistaken belief that family home was not affected by charge - Purported disposition of family home void on ground that wife's consent was not a fully-informed one - Conveyancing Act, 1882, s. 3 - Family Home Protection Act, 1976, s. 3 - (129/93 - Supreme Court - 15/11/95) - [1995] 2 I.R. 459

|Bank of Ireland v. Smyth|



Family home - Alienation - Wife - Agreement - Knowledge - Extent - Bank sought possession of farm including family home - Bank obliged to prove that prior written consent of wife was fully- informed consent - (129/93 - Supreme Court - 15/11/95)1995 2 IR 459

|Bank of Ireland v. Smyth|


JUDGMENT delivered on the 15th day of November 1995 by BLAYNEY J. [NEM, DISS]


The first named respondent Michael Joseph Smyth is a farmer and is the owner of the lands comprised in Folio 9173F of the Register of Freeholders, County of Tipperary, which are situate at Lelagh, Rathcabbin, Roscrea. There are approximately 124 acres in the Folio and the respondents" family home is situate on part of the lands comprised in the Folio.


On the 25th May 1978 the first named respondent (Mr. Smyth) executed an indenture of charge in favour of the Governor and Company of the Bank of Ireland (the bank) to secure all monies then owing or which should thereafter become owing on a general balance of account or otherwise from Mr. Smyth to the bank. The second named respondent (Mrs. Smyth) signed a form of consent endorsed on the said charge whereby she consented for the purpose of section 3 of the Family Home Protection Act, 1976to the said charge. The said consent was in the following form:-

"I, Una Smyth of Lelagh, Rathcabbin, Roscrea, being the spouse of Michael Smyth hereby consent for the purpose of section 3 of the Family Home Protection Act, 1976to the within mortgage to be created by the said Michael Smyth in favour of the Governor and Company of the Bank of Ireland for all liabilities, present and future, either solely or jointly whether as principal or surety with another or others and hereby consent to the registration in the mortgage. Dated the 25th day of May 1978. Signed by the said Una Smyth."


In the month of June 1988 there was a sum of £180,289.38 due and owing by Mr. Smyth to the bank on foot of the charge dated the 25th May 1978. The bank thereupon issued a special summons pursuant to s. 62 subs. (7) of the Registration of Title Act, 1964seeking an order for possession of the lands described in the said Folio 9173F of the Register of Freeholders County of Tipperary.


The summons was heard by Geoghegan J. on oral evidence on the 5th and 9th March 1993 and in a reserved judgment dated the 26th day of March 1993 the learned trial judge decided that the bank was not entitled to an order for possession of Mr. Smyth's lands and dismissed the claim of the bank. The bank now appeals against that dismiss.


A number of issues were raised in the High Court but the sole issue with which this Court is concerned is the single issue on which the learned trial judge decided in favour of the respondents. He held that "while there was a document purporting to be a consent in writing, there was in fact no consent within the meaning of the Act of 1976."


The circumstances in which Mrs. Smyth came to give her consent to the transaction were not in dispute and might be summarised as follows. On the 12th May 1978 Mr. Dowley wrote to Mr. Smyth as follows in connection with the proposed charge:-

"Dear Mr. Smyth

Further to recent correspondence I have now received from the bank's law department the necessary legal papers for benefit of your signature.

Mrs. Smyth's signature will also be required and I shall be obliged if both of you will call on me as soon as convenient in order that we may complete the matter in hand.

Yours sincerely

D.E. Dowley



In pursuance of this request, Mr. and Mrs. Smyth called to the bank on the 24th May. In the course of an interview with Mr. Dowley which lasted between ten and fifteen minutes, Mrs. Smyth signed the form of consent. Mr. Dowley did not explain to Mrs. Smyth that she would lose her home if the payments were not made. And he did not suggest to her that she should get independent advice. The learned trial judge accepted that Mr. Dowley explained to Mrs. Smyth that she was signing a mortgage on her family home. However, it was accepted by counsel for the bank in the course of his submissions to this Court that Mrs. Smyth in fact believed that the charge did not affect the family home. Their house had been built with a loan of £8,000 from the A.C.C., and there was a mortgage on the farm to secure this sum, and Mrs. Smyth believed that because of this the bank would be unable to sell or take possession of the family home. Counsel for the bank referred to this as being a unilateral mistake on the part of Mrs. Smyth and submitted that it did not affect the validity of her consent as Mr. Dowley, and accordingly the bank, could not reasonably have been expected to be aware of what was in her mind.


The main case made by the bank was that they had no duty at common law or in equity, or under the provisions of the Family Home Protection Act, 1976, to explain to Mrs. Smyth the nature of the charge to which she was giving her consent or the effect or consequences it could have for her.


Accordingly, as there had been no breach of duty on the part of the bank, it was entitled to rely on the consent signed by Mrs. Smyth even though there had been a unilateral mistake on her part in regard to the nature of the charge she was signing.


On behalf of Mrs. Smyth it was submitted that before her consent could be a valid consent under the 1976 Act it had to be established that she fully and freely consented to what she was doing. As the bank had failed to establish this, it could not rely on the consent.


The net issue in the case is, accordingly, whether the consent signed by Mrs. Smyth was a sufficient consent for the purposes of the 1976 Act having regard to the circumstances in which her consent was given and, in particular, having regard to her understanding of what she was doing. It was common case that, as required by the 1976 Act, she had signed the consent before her husband executed the charge, and accordingly this was not an issue in the case. The onus of proving that it was a sufficient consent is in my opinion on the bank. It is relying on the charge as giving it title to recover possession of Mr. Smyth's farm and, accordingly, the validity of the charge is an essential proof in the case and this depends on Mrs. Smyth having given a valid consent to the charge. In the absence of such a consent s. 3 subs. (1) of the 1976 Act makes the charge void. That subsection provides as follows:-

"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."


It is common case that subsections (2) and (3) and s. 4, to which the provisions of subsection (1) are subject, do not affect the position here, and accordingly do not have to be considered. The Court is concerned solely with whether there was a valid "prior consent in writing" given by Mrs. Smyth. It is clear from the definitions in s. 1 of the Act that a charge is a conveyance within s. 3 subs. (1).


The question of what the requirements are which a consent has to comply with in order to be valid has not as yet been considered by any court. It seems to me that they have to be deduced from the object of the Act itself and from dicta of this Court explaining it, and also from authorities setting out what requirements have been laid down for consents which are required in other contexts.


The long title of the Act is:-

"An Act to provide for the protection of the Family Home and for related matters."


The aim thus clearly set out requires no explanation and it is plain that the section which essentially gives effect to it is s. 3. It follows that the purpose of the provision in s. 3 is to enable a spouse to protect the family home for her own benefit and also for that of her children. This is set out in very clear language by Henchy J. in his judgment in Dunne v. Hamilton 1982 I.R. 466 where he said at p. 485/6:-

"The Act of 1976 provides for the protection of the family...

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