Family Property FHPA

What is the purpose of the FHPA 1976?

To prevent one spouse from transferring or conveying the family home without the prior written consent of the other spouse, protecting the non-owning spouse’s security of the home.

What Act provides equivalent protection for civil partners?

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (CPCROCA).

What is the difference between a “family home” and a “shared home”?

“Family home” applies to spouses, and “shared home” applies to civil partners — both afford the same protection.

What sections govern consent under these Acts?

Section 3(1) FHPA 1976 and Section 28 CPCROCA 2010.

What must consent be for it to be valid?

Valid, prior to the conveyance, and in writing.

What did BOI v Hanrahan establish about consent?

The equitable mortgage only came into existence when the wife’s consent was given, not on the transfer of certificates.

What principle was established in BOI v Smyth?

Consent is void if the non-owning spouse did not fully understand the deed; banks or third parties must make reasonable inquiries into understanding.

What is the purpose of statutory declarations under the 1976 and 2010 Acts?

They allow the owning party to declare that the property is not a family/shared home, simplifying transactions.

What concern does De Londras raise about statutory declarations?

They have “potential for abuse.”

How is a “purchaser for full value” defined under S3(3)(a)?

A person who in good faith acquires an interest in the property.

What happened in Somers v Weir?

The purchaser had constructive notice because they failed to inquire about a separation agreement; the transaction was void.

What was held in Reynolds v Waters?

A purchaser may rely on a statutory declaration unless there are signs of unreliability warranting further inquiries.

What criticism does Lyall make about the current approach?

It protects good-faith purchasers but “leaves some spouses vulnerable.”

Under what provision can the court dispense with consent?

Section 4 of the FHPA 1976 (and equivalent in the 2010 Act).

Why can the court dispense with consent?

To avoid one partner “absolutely stymieing” the use of the home (De Londras).

What is the standard for assessing reasonableness in withholding consent?

Objective — considering all circumstances (Hamilton v Hamilton).

In what case was consent dispensed with due to reasonable alternative accommodation?

SOB v MOD.

When will the court uphold protection and not dispense with consent?

When refusal is based on legitimate objective financial concerns

What case illustrates legitimate refusal based on financial concerns?

R v R, where the wife refused to consent to a mortgage fearing repayment issues.