Somers v W

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 14 February 1979
• Docket Number: [1978 No. 2 Sp.]
• Date: 14 February 1979

High Court

Supreme Court

[1978 No. 2 Sp.]

Somers v. W.

Sandra Somers

Plaintiff

and

W.

Defendant

Cases mentioned in this report:—

¹ National Provincial Bank v. AinsworthELR [1965] A.C. 1178.

² C. v. C.IR [1976] I.R. 254.

³ Butcher v. SteadELR (1875) L.R. 7 H.L. 839.

⁴ Vane v. Vane (1873) 8 Ch. App. 383.

⁵ Hastings & Thanet Building Society v. GoddardWLR [1970] 1 W.L.R. 1544.

⁶ Jones v. GordonELR (1877) 2 App. Cas. 616.

⁷ Smith v. MorrisonWLR [1974] 1 W.L.R. 659.

⁸ Ware v. EgmontENR (1854) 4 De G. M. & G. 460.

⁹ Whittingham v. WhittinghamWLR [1978] 2 W.L.R. 936.

Sate of land - Requisitions - Family home - Sale by husband - Wife's consent not obtained - Conveyance void unless purchaser acted in good faith - Whether purchaser made reasonable inquiries - Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 3 - Family Home Protection Act, 1976 (No. 27), ss. 1-4.

Special Summons

The facts have been summarised in the head-note and they appear in the judgments, infra. The Supreme Court treated the plaintiff's claim as if it sought a declaration that the assignment by the defendant's husband was valid.

Sections 2-4 of the Family Home Protection Act, 1976, provide:—

"2.—(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.

(2) In subsection (1) 'dwelling' means—

• (a) any building, or

• (b) any structure, vehicle or vessel (whether mobile or not),

or part thereof, occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.

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.

(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.

4.—(1) Where the spouse whose consent is required under section 3 (1) omits or refuses to consent, the court may, subject to the provisions of this section, dispense with the consent.

(2) The court shall not dispense with the consent of a spouse unless the court considers that it is unreasonable for the spouse to withhold consent, taking into account all the circumstances, including—

• (a) the respective needs and resources of the spouses and of the dependent children (if any) of the family, and

• (b) in a case where the spouse whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security of tenure in the family home and in the alternative accommodation.

(3) Where the spouse whose consent is required under section 3 (1) has deserted and continues to desert the other spouse, the court shall dispense with the consent. For this purpose, desertion includes conduct on the part of the former spouse that results in the other spouse, with just cause, leaving and living separately and apart from him.

(4) Where the spouse whose consent is required under section 3 (1) is incapable of consenting by reason of unsoundness of mind or other mental disability or has not after reasonable inquiries been found, the court may give the consent on behalf of that spouse, if it appears to the court to be reasonable to do so."

By s. 1 of the Act of 1976 the word "conveyance" when used in the Act includes, except where the context otherwise requires, any disposition of property otherwise than by will or a donatio mortis causa, and an enforceable agreement to make such conveyance.

The plaintiff's summons was heard by Doyle J. on the 6th and 10th April, 1978.

The defendant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 4th and 18th December, 1978.

Section 3 of the Act of 1976 states that where a spouse, without the prior consent in writing of the other spouse, purports to convey the family home to a third person the conveyance shall be void unless the conveyance is made to a purchaser who acquires the property in good faith and for full value. Section 2 of the Act defines "family home" as including a dwelling in which a spouse ordinarily resides or ordinarily resided before leaving the other spouse.

Prior to a certain date in 1973 the defendant lived in the county of Dublin with her husband in his house which he held under a lease. On that date the defendant left the house with her children. On the 2nd August, 1976, the husband contracted to sell the house to the plaintiff for its full value. When the plaintiff's solicitor required the defendant's written consent to the sale, he was informed by the husband's solicitor that the defendant had left the house some years ago and was no longer relying on it as her family home, that the husband was abroad and that the defendant's address was unknown. Having returned to Dublin, the husband on the 16th August made a statutory declaration in which he stated that the defendant had not relied on the said house as her family home since he and the defendant had separated and that, by virtue of a separation agreement, she had no interest therein. The separation agreement, which was not produced, did not contain any reference to the house. On the 17th August the plaintiff, relying on the statutory declaration, paid the balance of the purchase money and the husband assigned the house to the plaintiff. When the plaintiff agreed to sell the house in April, 1977, the purchaser insisted on obtaining the defendant's written consent to the sale by her husband. In October, 1977, the plaintiff's solicitor asked the defendant, who was living in Dublin, for her consent to that sale and, when the defendant refused to so consent, the plaintiff issued a summons in the High Court seeking an order dispensing with the defendant's consent pursuant to s. 4 of the Act of 1976 on the statutory ground that the defendant was withholding her consent unreasonably. The defendant claimed to have paid some part of the cost of buying the family home.

Held by Doyle J., in making the order sought, that the plaintiff had done all that was reasonably necessary to acquaint herself with the title of the defendant's husband.

On appeal by the defendant it was

Held by the Supreme Court (Henchy, Griffin and Parke JJ.), in allowing the appeal, 1, that the plaintiff's application for an order under s. 4 of the Act of 1976 was misconceived as the jurisdiction thereby conferred to dispense with consent was not exercisable by the court after the purported execution of a conveyance to the purchaser.

2. That, at the date of the purported assignment by the defendant's husband, the plaintiff was affected by constructive notice of the rights of the defendant because the continued existence of her statutory right to have her consent sought and of her other claims would have come to the knowledge of the plaintiff's solicitor if such inquiries had been made as ought reasonably to have been made by him.

3. That, by reason of the failure to make such inquiries, the plaintiff had failed to discharge the onus of establishing that she had acquired "in good faith" the lessee's interest in the property and that, accordingly, the purported assignment by the defendant's husband to the plaintiff was void.

Cur. adv. vult.

Doyle J.

The plaintiff seeks an order under the provisions of the Family Home Protection Act, 1976, dispensing with the consent of the defendant to the sale by her husband to the plaintiff of a certain house in the county of Dublin, which I shall call the contract premises. The matter comes before the Court in the following circumstances. On the 17th August, 1976, the plaintiff purchased from the defendant's husband his leasehold interest in the contract premises, which interest was duly assigned on that date to the plaintiff for a consideration of £6,400. At the time of the sale and assignment the defendant was living apart from her husband pursuant to the terms of a separation agreement which had been entered into some three years before that date. There were children of the marriage of whom the eldest is now aged 15 and the youngest 5 years; all of them reside with the defendant in the city of Dublin in other premises.

From the date of their marriage in 1961 the defendant and her husband lived in the contract premises. The defendant, her husband and their children lived in the contract premises until the marriage...