Hamilton v Hamilton

JurisdictionIreland
CourtSupreme Court
Judgment Date09 February 1982
Date09 February 1982
Docket Number[S.C. 1980 No. 129]

Supreme Court

[S.C. 1980 No. 129]
Hamilton v. Hamilton
Anne Hamilton
Plaintiff
and
Charles Robert Francis Hamilton and Frank Dunne
Defendants

Cases mentioned in this report:—

1 R. v. Reah [1968] 1 W.L.R. 1508.

2 Barber v. Pigden [1967] 1 Q.B. 664.

3 Hickson v. Darlow (1883) 23 Ch.D. 690.

4 Athlumney, In re, ex p. Wilson [1898] 2 Q.B. 547.

5 National Real Estate & Finance Co. v. Hassan [1939] 2 K.B. 61.

6 Caulfield v. Bourke (High Court: 13th November, 1980).

7 East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

8 Croxford v. Universal Insurance Co. [1936] 2 K.B. 253.

9 Irish Land Commission v. Dolan [1930] I.R. 235.

10 McEneaney v. Minister for Education [1941] I.R. 430.

11 Reid v. Reid (1886) 31 Ch.D. 402.

12 Sunshine Porcelain Potteries Pty. Ltd. v. Nash. [1961] A.C. 927.

13 Nestor v. Murphy [1979] I.R. 326.

14 Kyne v. Tiernan (High Court: 15th July 1980).

15 Somers v. W. [1979] I.R. 94.

16 Wroth v. Tyler [1974] Ch. 30.

17 Rice v. Dublin Corporation [1947] I.R. 425.

18 Tempany v. Hynes [1976] I.R. 101.

19 Carson v. Carson [1964] 1 W.L.R. 511.

20 Browne v. Mulligan (High Court: 23rd November, 1970).

21 Dr. Bonham's Case (1610) 8 Co. Rep. 114(a).

22 Day v. Savadge (1614) Hob. 85.

23 City of London v. Wood (1701) 12 Mod. Rep. 669.

24 Gardner v. Lucas (1878) 2 App. Cas. 582.

25 R. (O'Reilly) v. Divisional Justices of Dublin (1903) 37 I.L.T.R. 200.

26 Gillman v. Bourke [1914] 2 I.R. 97.

27 Hitchcock v. Way (1837) 6 Ad. & El. 943.

28 Restall v. London & South Western Rail Co. (1868) L.R. 3 Exch. 141.

29 Colonial Sugar Refining Co. v. Irving [1905] A.C. 369.

30 Welby v. Parker [1916] 2 Ch. 1.

31 R. v. Southampton Income Tax Commissioners, ex p. Singer [1916] 2 K.B. 249.

32 Hutchinson v. Jauncey [1950] 1 K.B. 574.

33 Jonas v. Rosenberg [1950] 2 K.B. 52.

34 Attorney-General v. Vernazza [1960] A.C. 965.

35 Zainal bin Hashim v. Government of Malaysia [1980] A.C. 734.

36 Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67.

37 Blake v. The Attorney General [1982] I.R. 117.

38 McDonald v. Bord na gCon [1965] I.R. 217.

39 Baily v. de Crespigny (1869) L.R. 4 Q.B. 180.

Statute - Interpretation - Prospective effect - Presumption against retroaction - Sale of land - Family home - Purchaser's pre-existing contractual rights - Subsequent enactment requiring written consent of vendor's wife - Consent withheld - Purchaser entitled to specific performance - Family Home Protection Act, 1976 (No. 27), ss. 1, 3, 4 - Constitution of Ireland, 1937, Articles 34, 40.

Appeal from the High Court

On the 26th July, 1979, the plaintiff issued in the High Court a plenary summons in which she claimed a declaration that a conveyance by the first defendant, her husband, of certain property at Dunboyne in the county of Meath was void by reason of the provisions of s. 3 of the Family Home Protection Act, 1976.

On the 25th January, 1973, the first defendant had contracted in writing to sell the said property to the second defendant for the sum of £150,000. In a previous and separate action in the High Court (No. 4429P of 1975) between the purchaser and the vendor, the High Court (Hamilton J.) delivered a judgment on the 21st April, 1977, in which it was held that the purchaser (the second defendant) was entitled to an order directing the specific performance by the vendor (the first defendant) of the said contract of sale. By order of the High Court (Finlay P.) dated the 31st October, 1979, the two actions were consolidated.

The plaintiff's action was tried by Gannon J. on the 5th and 6th February, 1980. On the 14th February, 1980, the trial judge delivered a reserved judgment in which he held, inter alia, that the plaintiff was entitled to a declaration that a conveyance by her husband, the first defendant, of that portion of the said property which constituted a family home within the meaning of s. 3 of the Act of 1976 was void because there had been no prior consent in writing by her to the execution of the conveyance, and because it was not unreasonable that she had withheld her consent thereto.

Section 2, sub-s. 1, of the Family Home Protection Act, 1976, provides:—

"(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."

Section 1, sub-s. 1, of the Act of 1976 provides (inter alia):—

"'conveyance' includes a mortgage, lease, assent, transfer, disclaimer, release and any other disposition of property otherwise than 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 3 of the Act of 1976 provides:—

"(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."

The unity of purpose which embraces a contract by a vendor for the sale of land and the completion of that contract by the vendor executing a conveyance of the land was recognised, in the context of the Act of 1976, inKyne v. Tiernan (No. 6857P of 1978). In that case a husband and wife contracted on the 20th July, 1978, to sell certain premises which constituted a family home within the meaning of the Act of 1976. The wife had already (on the 3rd July) provided her written consent to the contract of sale. Subsequently the wife refused to give her written consent to a conveyance of the premises to the purchaser, and he claimed in the High Court specific performance of the contract of sale. On the 15th July, 1980, the trial judge, McWilliam J., delivered a reserved judgment in which he held that the purchaser was entitled to an order for the specific performance of the contract.

In the course of his judgment, the trial judge said:— "With regard to the second point, I suppose it could be said, on a strict interpretation of s. 3 of the Act of 1976, that there must be a consent in writing to each conveyance, that is to say, both to the contract and to the final conveyance to the purchaser, but I cannot imagine that it could have been the intention of the legislature to require two consents for the completion of one transaction, namely, the sale of one house, and thus leave a purchaser in the position of conducting all the work and incurring all the expense necessary for the completion of a purchase, only to find that a spouse had changed his or her mind about giving consent and requires the whole transaction to be abandoned. Accordingly, I am of opinion that the consent given by the wife on the 3rd July, 1978, is sufficient for the completion of the entire transaction."

The second defendant appealed to the Supreme Court against the judgment and order of the High Court. The appeal was heard on the 24th and 25th November, and the 1st December, 1981. Counsel for the first defendant were not required to attend after the first day of the hearing.

Prior to the 12th July, 1976 (being the date of the enactment of the Act of 1976), the first defendant, being the husband of the plaintiff, agreed in writing to sell to the second defendant certain property consisting of a mansion house and 215 acres of land for the sum of £150,000, and the second defendant paid a deposit of £15,000. When the first defendant failed to complete the sale, the second defendant commenced an action, prior to the said date, in the High Court against the first defendant and claimed the specific performance of the contract of sale; judgment in that action in favour of the second defendant was delivered on the 21st April, 1977. Upon the enactment of the said Act (a) the plaintiff became aware of the power of a spouse to refuse consent to a conveyance of a family home and (b) it became apparent that the property comprised in the contract of sale included a "family home" within the meaning of the Act of 1976. The plaintiff refused to consent to the first defendant conveying the property to the second defendant and, the sale being still uncompleted, she commenced these proceedings in the High Court on the 26th July, 1979, and claimed a declaration that any conveyance of the said property by the first defendant, without her prior consent in writing, would be void by virtue of s. 3, sub-s. 1, of the Act of 1976. The trial judge made an order declaring that any assurance by the...

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