Nestor v Murphy
| Court | Supreme Court |
| Judge | Henchy J. |
| Judgment Date | 23 October 1979 |
| Neutral Citation | 1978 WJSC-SC 3788 |
| Docket Number | [1978 No. 7333P.] |
| Date | 23 October 1979 |
1978 WJSC-SC 3788
THE SUPREME COURT
Judgment of Henchy J. delivered the 23 Oct. 1979
The two defendants are a married couple. Their family home is at ______________ Lucan, Co. Dublin. It is held by them under a long lease and they are joint tenants of the leasehold interest. In July 1978 they agreed to sell their interest to the plaintiff. They each signed a contract to sell to the plaintiff for £18,500. In form it is a binding and enforceable contract. However, they refuse to complete the sale. The reason they give is that the contract is void under s. 3(1) of the Family Home Protection Act, 1976, because the wife did not consent to the sale in writing before the contract was signed. That is the net point in this claim by the plaintiff for the specific performance of the contract.
A surface or literal appraisal of s. 3(1) might be though to give support to the defendants' objection to the contract. S. 3(1) runs thus:
"Where a spouse, without the prior consent in writing of the other spouse, purports of 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".
By reason of the definition is s. 1(1) the contract signed by the defendants is a "conveyance", and subsections (2) and (3) and section 4 are not applicable to this case. Therefore, the argument runs, s. 3(1) makes the contract void because a spouse (the husband), without the prior consent in writing of the other spouse, "conveyed" an interest in the family home to the plaintiff.
The flaw in this interpretation of s. 3(1) is that it assumes that it was intended to apply when both spouses are parties to the "conveyance". That, however, is not so. The basic purpose of the subsection is to protect the family home by giving a right of avoidance to the spouse who was not a party to the transaction. It ensures that protection by requiring, for the validity both of the contract to dispose and of the actual disposition, that the non-disposing spouse should have given a prior consent in writing. The point and purpose of imposing the sanction of voidness is to enforce the right of the non-disposing spouse to veto the disposition by the other spouse of an interest in the family home. The subsection cannot have been intended by Parliament to apply when both spouses join...
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