Family Home and Family Law Acts
2. The Family Home Protection Act 1976
3. Land Registry Practice on lodgement of Transfers, Conveyances, Charges etc.
4. Registration of Lis Pendens
5. Registration of statement that registered deed is void
6. Registration of the existence of marriage
7. Stamp Duty on the creation of Joint Tenancy in the Family Home
9. Prohibition Notes under section 59(2) of Registration of Title Act 1964
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 make full enquiries on the matter (Somers v. Weir [1979] I.R., 11 ILTSJ p.81) It had been held , per Gannon J. that ‘the provisions of section 31(1) of the Registration of Title Act 1964 (establishing the conclusiveness of the register) afford a sufficient protection of the vendor and the intending purchaser in relation to all prior transactions affecting the registered ownership as appearing on title’ (Guckian v. Brennan [1981 IR 478]).
The Court also held that ‘the duty of ensuring that any instrument of transfer is valid and effective, so as to enable a transmission of ownership to be duly registered, falls upon the Registrar at the time of the registration’. Since the commencement of the FLA, all that would be required is that the Authority be satisfied that no proceedings have been commenced, and no statement made, such as referred to in section 3(8)(c) and (d) of the FHPA, as inserted by section 54 of the FLA in respect of the conveyance lodged for registration.
In the case of a mortgage application it is the responsibility of the lending institution to ensure that the rights of any spouse in actual occupation of the property have been safeguarded (section 54(1)(b)(ii) FLA).
Before registration the following matters should be checked:
1. That there is no entry on Part III of the folio as to a statement of invalidity under section 3(8) FHPA, as amended, by the parties to the deed, and no such dealing pending;
2. That there is no Lis Pendens on the folio as per section 3(8) FHPA as amended, and no such dealing pending;
If an entry relating to either of the above matters appears on the folio the matter is to be drawn to the attention of the lodging solicitor and registration stayed.
Otherwise, no consents, statutory declarations or certificates need be requested, and if lodged these will be returned to the lodging party and will not be filed with the Instrument.
4. Registration of a Lis Pendens
Where proceedings have been instituted to have a deed of transfer declared void by reason of the absence of prior consent, a lis pendens shall be lodged in the Registry. It may be registered as usual if it complies with Rule 119 of the Land Registration Rules 2012 and Forms 64 and 65 of the said Rules (See section 69(1)(1)ROT 1964.)
5. Registration of statement that registered deed is void
The parties to a deed that did not have a spouse’s consent can declare it void under the FHPA (see section 3(8)(c)). The statement must be in writing, within 6 years of the date of the deed, and must, in the case of registered property, be lodged in the Land Registry for registration as a burden within the meaning of section 69 of the Registration of Title Act 1964. A copy of the statement certified by the persons concerned, or their successors in title, to be a true copy, will suffice.
The existence of the statement may be registered as a burden on Part 3 of the folio in the following manner:
“A statement dated ………. made between ……… and …………. pursuant to section 3(8)(c) of the Family Home Protection Act 1976 as inserted by section 54(1)(b) of the Family Law Act 1995”
The ownership, or other registration arising from the deed in question is not to be cancelled at this stage since the rights of other persons concerned are protected by the FHPA.
6. Registration of Notice of Existence of Marriage
Under section12 of the FHPA a spouse may apply for the entry in the Register of a notice of the existence of marriage against property in which the other spouse has an interest, free from stamp duty and fees. An Affidavit or Declaration should be called for identifying the property of the owner-spouse and the interest such owner has in it and proving the marriage of the spouse.
Notice is to be served on the registered owner and the owner-spouse, if a different person, after registration. The entry on the register (Part 2) should be in the following form:
“Date of lodgement Notice pursuant to section 12 of No. ……………….. The Family Home Protection Act 1976: AB (Applicant) is married to CD (spouse) the registered owner or a person having an interest in the property).”
On lodgement of a disposition of the property subject to such an entry, notice is to be served on the party who entered same and any objection considered on its merits, in the light of chapter 3 ante.
7. Stamp Duty on the Creation of Joint Tenancy in the Family Home
Section 14 of the FHPA provides that no stamp duty or registration fees are payable on any transaction creating a joint tenancy between spouses in respect of the Family Home where such home was prior to such transaction owned by either Spouse or by both Spouse otherwise than as joint tenants.
8. Property Adjustment Orders
These are Court orders made under family law legislation. They may arise under any of the following provisions:
- Judicial Separation and Family Law Reform Act 1989 – section 15
- Family Law Act 1995 – section 9
- Family Law (Divorce) Act 1996 – section 14
The Orders may provide for the variation, reduction or extinguishment of the respective interests of the spouses in the marital property. However, it is important to distinguish between the Orders themselves and transfers or conveyances made pursuant to them.
The only registration we can make on lodgement of the Order itself is as a burden under section 69(1)(h) of the ROT 1964. The 1995 FLA (sections 9(4) and 18(7)) confirms this approach and provides that a copy of the Order (certified to be a true copy by the registrar or clerk of the court concerned) must be lodged in the Registry for registration as a burden. The burden should be registered in the following manner:
An order of the ___________ Court dated _____________in the matter of Section _____ of the ______________ Act and in the matter of __________________ v ____________________.
A transfer executed as result of the Order may be registered in the usual way if it is by the owner spouse. If the transfer is by some other person, e.g. a Court officer, it may be registered provided it is in conformity with the terms of the Order.
Note that where the court, when granting a decree of judicial separation under the Judicial Separation and Family Law Reform Act of 1989, orders that the ownership of the family home shall be vested in one of the spouses it must now order, unless it sees reason to the contrary, that the consent provisions of section 3 FHPA shall not apply to any conveyance by that spouse (section 54(3) of the FLA 1995).
9. Prohibition Notes under Section 59(2) of Registration of Title Act 1964
This section obliges the Registrar to note statutory restrictions and prohibitions (e.g. as under the Land Acts) on the register. The section does not apply to the FHPA, however, and it is so provided at section 13 FHPA. In other words the Authority has no duty to make any prohibition note or other entry on the Register in relation to the Family Home Protection Act 1976.
_________________________________________ John Deeney Deputy Registrar Property Registration Authority.
18th March 2009
Updated
01 February 2013
22 May 2018