Family Home and Family Law Acts

• Original version: <a href='/vid/family-home-and-family-907695909'>Family Home and Family Law Acts</a>

1. Definitions

The definitions in the Family Home Protection Act 1976 (FHPA) and Family Law Act 1995 (FLA) are very comprehensive and the relevant sections of the FHPA and of the FLA 1995 should be consulted in case of doubt. The following important definitions are in summary form:

• “Conveyance” means any disposition of property otherwise than by will or a donatio mortis causa. See section 1 FHPA The term is used hereafter to refer to any such disposition.
• “Interest” means any estate, right, title or other interest, legal or equitable. See section 1 FHPA.
• “Family Home” means primarily a dwelling in which a married couple ordinarily reside. It can also include a dwelling in which a spouse whose protection is in issue ordinarily resides, or used to reside before leaving. See section 2 FHPA
• “Dwelling” has been re-defined by the FLA 1995. It can include a building, structure, vehicle or vessel, or part thereof occupied as a separate dwelling, a garden or grounds. See FLA 1995 section 54
• “Purchaser” and “full value” are defined in section 3 FHPA

2. The Family Home Protection Act

The Family Home Protection Act (FHPA) came into operation on 12th of July 1976. Its main purpose is the protection of the family home.

Section 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.

The original far-reaching effect of the section has been mitigated by the provisions of section 54(1)(b) of the Family Law Act of 1995 (FLA) which, inter alia, provides that a conveyance shall be deemed not to be and never to have been void by virtue of subsection (1) unless (a) it is declared void by the Court or (b) it is void by reason of the absence of the necessary consent and the parties to the conveyance subsequently so state in writing.

The proceedings to have the conveyance declared void must be instituted before the expiration of six years from the date of the conveyance. The statement of the parties must also be made before the expiration of that period of six years and can be registered in the Land Registry or the Registry of Deeds.

However, where a non-consenting spouse has been in actual occupation of the property from immediately before the expiration of 6 years from the date of the conveyance concerned, there is no time limit as to when he/she can commence proceedings (section 3(8) F.H.P.A. as inserted by section 54(1)(b) Family Law Act 1995) . In practice, this would only be likely to apply in the case of a mortgage.

3. Land Registry Practice on lodgement of Transfer, Conveyances, Charges etc.

The FHPA originally provided that a conveyance of the family home by one spouse without the prior consent of the other spouse was void. Since the coming into operation of the FLA in 1995, such a conveyance is voidable only.

Note that a conveyance made as a result of an enforceable agreement (e.g. a mortgage) made before the marriage, will not be void or voidable (FHPA section 3(2)). Similarly a conveyance made to a bona fide purchaser for full value and without notice (as per section 3 of FHPA), will not be void or voidable (FHPA section3(3).

The purchaser’s solicitor is primarily responsible for compliance with the Act. S/he has the means of knowledge and opportunity (inspection and requisitions on title) to ensure compliance. A purchaser has a duty to...