1989 - 10 C.A.
THE HIGH COURT
Judgment of Mr. Justice Barron delivered the 6th day of October 1989
This is an application by the husband for an Order under Section 5 (1) of the Family Home Protection Act 1976 for an Order transferring his wife's interest in the family home to him. The parties were married on the 7th January 1977 and established their family home at B in the City of Dublin. They own this home beneficially in equal shares. There are two children of the marriage: R born on the 26th September 1979 and 0 born on the 30th September 1981.
The marriage failed. In November 1984 the wife left the matrimonial home and since then has lived with another man two miles away. The husband and the two children of the marriage remained in the matrimonial home.
Following the break-up of the marriage the wife sought custody of the children and the sale of the family home but these reliefs were refused. In June 1986 she borrowed a sum of £1,000 from the bank of Ireland to purchase furniture. She was unable to pay this back, mainly through her inability to retain employment owing to ill health. In 1987 she again sought a sale of the family home in lieu of partition. This relief was again refused. Judgment was obtained against her by the bank on the 13th June 1988 for the sum of £1,432.40 and has been registered as a Judgment Mortgage against her interest in the family home.
Section 5 of the Family Home Protection Act 1976 is as follows:
(1) Where it appears to the court, on the application of a spouse, that the other spouse is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of depriving the applicant spouse or a dependent child of the family of his residence in the family home, the court may make such order as it considers proper, directed to the other spouse or to any other person, for the protection of the family home in the interest of the applicant spouse or such child.
(2) Where it appears to the court, on the application of a spouse, that the other spouse has deprived the applicant spouse or a dependent child of the family of his residence in the family home by conduct that resulted in the loss of any interest therein or rendered it unsuitable for habitation as a family home, the court may order the other spouse or any other person to pay to the applicant spouse such amount as the Court considers proper to compensate the applicant spouse and any such child for their loss or make such other order directed to the other spouse or to any other person as may appear to the court to be just and equitable."
In E.D. v. F.D. an unreported judgment of Costello J. delivered on the 23rd October 1980 an Order was refused in favour of a wife under Section 5 (1) against a husband who had run up a considerable load of debt without any obvious means of meeting such debt other than his interest in the family home, because he was not satisfied that his intention was to deprive his family of the family home. When it subsequently became clear that such intention was the only reasonable inference to be drawn from conduct on the part of the husband in further increasing his debts he made the order sought. In G.P.P. v. I.H.P. an unreported judgment of O'Hanlon J. delivered on the 19th October 1984 the Court was satisfied that the husband was acting mala fide and engaged on the course of conduct designed to deprive the plaintiff of the family home and to extract the maximum financial benefit for himself without regard for the needs of his wife or children. The relief sought was granted.
In A.D. v. D.D. and Irish Nationwide Building Societ an unreported judgment of McWilliam J. delivered on the 8th June 1983 the application was made under Section 5 (2). There was an agreement whereby the husband agreed to sell the family home and to pay the balance after paying off the Building Society mortgage to his wife. In the event, he was unable to sell for more than the amount of the mortgage and the wife therefore was deprived of her residence in the family home without any money to obtain an alternative residence. It was held that his failure to implement the terms of the agreement arose through lack of finance and not as a result of any action on his part. Accordingly, the relief sought was refused.
In the present case the wife is short of money and has been since she left the family home. She clearly wishes to realise her financial interest in the family home but has been refused the necessary order which would enable her to do so. The debt which has resulted in the registration of a Judgment Mortgage against her interest in the home was not incurred with an express intention of depriving her husband and children of their residence in the family home, and since it has not as yet deprived them of such residence, the conditions for relief under Section 5 subsection (2) have not been fulfilled.
Nevertheless the Defendant is putting the residence of her husband and children in the family home at risk since she is making no effort to pay off the Judgment Mortgage. This may be owing to her poor financial circumstances, but does indicate a wish to retain the financial benefit of the loan at the expense of her family. Indeed, it is probable that the same financial circumstances will lead her to borrow again. If she does so, there could be no doubt of her intention to obtain a personal benefit at the expense of her family.
I regard these circumstances as coming within the terms of Section 5 (1). As a matter of construction of this subsection, I do not think that the claimant spouse must wait until there is a fait accompli. If he or she has to, then much of the remedy provided by the subsection would be lost.
The Order which may be made is "such Order as it considers proper directed to the other spouse or to any other person for the protection of the family home in the interest of the applicant spouse or such child." The Section does not require an absolute transfer of the interest of the errant spouse in favour of the claimant spouse or children. Regard must be had to the purpose of the Act. It is to prevent voluntary alienation of an interest in the family home by one spouse to the prejudice of the other or their dependent children. In practical terms, the wife in the present case cannot realise her interest until the Court makes an Order which in effect permits such a result. This is unlikely to be done before the children cease to be dependent. In the circumstances, it seems to me that the proper relief should be to safeguard this practical situation.
The Order should be one which protects the family home for the benefit of the Plaintiff and the two children of the marriage. This can be done by transferring the restricted interest which the Defendant has in the premises by reason of the provisions of Section 3 of the Act. To do so in reality takes nothing from the Defendant, but at the same time achieves the protection which the Act requires. There will be an Order requiring the Defendant to transfer her interest to trustees so that her present beneficial interest vests in the Plaintiff or his personal representatives until such time as she discharges the Judgment Mortgage or the parties otherwise agree or a Court would, but for this Order, have ordered a sale of the premises at the suit of the Defendant.