A S v G S

• Jurisdiction: Ireland
• Judgment Date: 02 February 1994
• Date: 02 February 1994
• Docket Number: [1992 No. 464 Sp.]
• Court: High Court

High Court

[1992 No. 464 Sp.]

A.S. v. G.S.

A.S.

Applicant

and

G.S.

Respondent

Allied Irish Banks plc, Notice Party

Cases referred to in this report:—

Bellamy v. Sabine (1857) 1 De G. & J. 566.

Culpepper v. Aston (1682) 2 Cas. in Ch. 115.

Giles v. Brady [1974] I.R. 462.

Re Murphy and McCormack [1930] I.R. 322.

Perez-Adamson v. Perez-Rivas [1987] Fam. 89; [1987] 3 W.L.R. 500; [1987] 3 All E.R. 20.

Sorrell v. Carpenter (1728) 2 P. Wms. 482.

Re Strong [1940] I.R. 382; (1940) 74 I.L.T.R. 177.

Whittingham v. Whittingham [1979] Fam. 9; [1978] 2 W.L.R. 936; [1978] 3 All E.R. 805.

Worsley v. Earl of Scarborough (1746) 3 Atk. 392.

Husband and wife - Judicial separation - Property adjustment order - Preliminary order for protection of family home - Wife seeking transfer of husband 's interest in family home - Preliminary protection order preventing bank from registering judgment as mortgage over husband's interest - Whether application for property adjustment order in judicial separation proceedings is a registerable lis pendens - Whether bank on notice of registerable lis pendens - Whether notice of unregistered registerable lis pendens to prospective judgment mortgagee necessary to prevent judgment mortgagee acquiring priority - Judgments (Ireland) Act, 1844 (7 & 8 Vict., c. 90), s. 10 - Family Home Protection Act, 1976 (No. 27), s. 5, sub-s. 1 - Judicial Separation and Family Law Reform Act, 1989 (No. 6), ss. 11 and 15.

Husband and wife - Judicial separation - Preliminary protection order - Whether analagous to interlocutory injunction - Preliminary protection order preventing bank from registering judgment as mortgage over husband's interest in family home - Whether conduct by husband with intention of depriving wife and dependent child of residence in family home - Whether preliminary protection order should be lifted - Family Home Protection Act, 1976 (No. 27), s. 5, sub-s. 1 - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 11.

Practice - Lis pendens - Nature of lis pendens - Whether linked to equitable doctrine of notice - Whether application for property adjustment order in judicial separation proceedings registerable lis pendens - Whether notice of unregistered registerable lis pendens to prospective judgment mortgagee necessary to prevent judgment mortgagee acquiring priority - Whether same principle applicable in case of registered land - Judgments (Ireland) Act, 1844 (7 & 8 Vict., c. 90), s. 10 - Registration of Title Act, 1964 (No. 16), s. 69, sub-s. 1 (i) - Judicial Separation and Family Law Reform Act, 1989 (No. 11), ss. 11 and 15.

Real property - Judgment mortgage - Whether judgment mortgagee volunteer - Whether notice of unregistered registerable lis pendens to prospective judgment mortgagee necessary to prevent judgment mortgagee acquiring priority - Judgments (Ireland) Act, 1844 (7 & 8 Vict., c. 90), s. 10 - Registration of Title Act, 1964 (No. 16), s. 69, sub-s. 1 (i).

Special summons.

By special summons issued on the 24th June, 1992, the applicant claimed a decree of judicial separation pursuant to s. 2 of the Judicial Separation and Family Law Reform Act, 1989 and ancillary orders pursuant to ss. 14, 21, 15, 16, 17 and 18.

On the 26th June, 1992, pursuant to a motion on notice to the respondent and the notice party, the High Court (Carney J.) made an order restraining the notice party from registering a judgment mortgage against the property the subject of the claim for property adjustment orders, or from having the respondent adjudicated a bankrupt. The order was extended for further periods on a number of occasions, and on the 30th October, 1992, the High Court (Budd J.) extended the order until the hearing of the application for a decree of judicial separation.

The application was heard by the High Court (Geoghegan J.) on the 15th and 16th December, 1993.

Section 11, para. (c) of the Judicial Separation and Family Law Reform Act, 1989, provides that where an application for a decree of judicial separation has been issued, the court, before deciding whether to grant the decree, may make an order pursuant to s. 5 of the Family Home Protection Act, 1976, for the protection of the family home or of any monies realised from the conveyance of any interest therein.

By s. 5 of the Act of 1976, the court may make an order for the protection of the family home where it appears "that the other spouse is engaging in such conduct as may lead to the loss of any interest in the family home . . . with the intention of depriving the applicant spouse or a dependent child of his residence in the family home."

By s. 15, sub-s. 1 (a) of the Act of 1989, where a decree of judicial separation has been granted, the court may order a spouse to transfer property to which that spouse is entitled, to the other spouse.

By s. 10 of the Judgments (Ireland) Act, 1844, "no lis pendens shall bind or affect a purchaser or mortgagee without express notice thereof, unless and until" it has been duly registered in accordance with the provisions of that Act.

By s. 69, sub-s. 1 (h) of the Registration of Title Act, 1964, a lis pendens may be registered as a burden affecting registered land.

The respondent was the registered owner of the leasehold interest in certain registered lands. The notice party had obtained a judgment against him. The applicant issued proceedings for a decree of judicial separation, which also included a claim for a property adjustment order under s. 15, sub-s. 1 (a) of the Act of 1989 in respect of the lands, but the application...