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Family Home

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The Family Home Protection Act 1976 seeks to provide protection for the non-earning spouse. It does this by ensuring that the owning spouse cannot dispose of the Family Home without the consent of the non-owning spouse.

N.B. The Act does not create joint ownership in the house for a spouse who does not already have that right, i.e. Name on the title deeds.

Q1: What is a Family Home?

A1:

  1. It is the dwelling in which the married couple ordinarily reside.
  2. It is the house in which the spouse whose protection is at issue ordinarily resides, or resided before leaving.
  3. It could be a flat or mobile home.
  4. It also includes the garden around the house, or any ground attached to and usually occupied with the dwelling.
  5. Where the house is on a farm, the farm lands would not be part of the family home but would include (d) above. The advice of a solicitor should be sought.

Q2: Who owns the Family Home?

A2: Ownership depends on:

  1. The name under which the property is registered and/or
  2. Who paid for the property.

Where the house is bought and registered in both spouses names, they are the joint owners. This means that both husband and wife own all the property. Therefore, when one spouse dies the other spouse still owns the property. When the property is jointly owned, it is not possible to will one's share to another person as the property is not divided into shares and does not become part of the deceased spouses estate.

Where the property is jointly owned and the spouses separate, it is possible to sell the home and divide the proceeds of sale.

Where the house is registered in the name of the husband only, it may be his sole property. But, if the wife has contributed her own income or earnings from outside the home, she may have gained a beneficial interest in the property.

Note: This does not apply if the property is in the wife's name only and the husband contributes financially. Here the law assumes the husband is making a gift to his wife, unless there is specific evidence to prove otherwise.

Q3: Can a spouse sell or mortgage the family home and leave the other spouse and children without a home?

A3: A husband or wife cannot sell or mortgage the family home without the written consent of the other spouse, no matter in whose name the property is registered and regardless of their respective financial interests in it. However, the spouse's consent can be dispensed with by the Court (High Court or Circuit Court) if the Court is satisfied that consent is being withheld unreasonably - for example, if the other spouse is willing to provide suitable alternative accommodation for the family.

Q4: What does suitable alternative accommodation mean?

A4: This is accommodation of the same standard as the previous family home, if the spouse can afford it, and to the highest standard s/he can afford, if circumstances have altered. The practice has developed whereby a portion of the proceeds of sale is set aside and used in the purchase of secure alternative accommodation for the other spouse and family.

Q5: Has the other spouse any say in the choice of accommodation?

A5: Factors such as the availability of schools, etc. would be taken into account by the Court in judging cases taken under this Act, as well as any other factors which the Court might consider relevant.

Q6: What precautions can a spouse take to ensure that the Family Home is not sold or mortgaged without his or her consent?

A6: A spouse may apply in writing to the Registry of Deeds or the Land Registry requesting that a note be entered on the property file to show that s/he is married to the owner of the property Even where this is not done a person seeking to purchase property cannot presume that it is not a family home.

Q7: Is it possible to have the Family Home changed from single to joint ownership?

A7: Yes. The Act provides that no stamp duty is payable where the husband conveys the home into the joint names of himself and his wife. (See Q 2.) There will, however, be legal fees involved. The amount should be checked in advance with your solicitor.

Q8: If the house is in joint ownership, is a non-earning spouse liable for the mortgage or other payments?

A8: Both owners are equally responsible for meeting the cost of repayments, so a non-earning spouse is usually made both jointly and severally (separately) liable f or the mortgage repayments under the terms of the mort gage deed.

Q9: What happens if the mortgage is not paid?

A9:

  1. It is very important to contact the Building Society or Bank as soon as possible to try to come to some agreement regarding the payments.
  2. If the husband is engaging in conduct which may lead to the loss of the family home, with the intention of depriving his wife and children of the home, the wife or any other person may apply to the Court and the Court will make such orders as it sees fit to protect the family home.
  3. Where there is an application to repossess the house by the Building Society or Lending Institution and where the wife is capable of making repayments on the mortgage, the Court may adjourn the case to allow the wife time to make the payments.

Q10: If the house is in the name of one spouse only and that spouse dies, does the house then belong to the surviving spouse?

A10: This will depend on a number of factors, including whether there is a Will and the terms of that Will.

  1. Where there is a Will and it is left to the surviving spouse, then, after a grant of probate of the Will has been extracted, the house will vest in the surviving spouse.
  2. Where there is no Will and no children, the property will belong to the surviving spouse once Letters of Administration have been taken out.
  3. Where there is no Will and the deceased had children, the children are legally entitled to a share in the deceased's estate. This can be complicated and the advice of a solicitor should be sought.
  4. Generally, when the home has been left by Will to another party, the surviving spouse has a legal right under the 1965 Succession Act to a share in their spouse's estate and could seek the house as his/her share, subject to the value of the house and the value of the estate as a whole. If the value of the house exceeds the spouse's legal right share, the spouse might have to compensate other persons entitled under the Will. If, however, the house is part of a farm or business, it might not be possible to take the house as spouses share under the Succession Act.

It is important to remember that, to avoid unnecessary legal expenses and family feuds, both spouses should make a will. Succession is a complex legal area and expert legal advice should be sought.

Q11: What happens when the house is owned by the local authority or other body?

A11: Most tenancies are granted jointly these days. Where the tenancy is in one name it is possible for the local authority to have it changed to joint names if they have a Court Order.

Q12: If one spouse deserts and the other takes over the mortgage repayments, what is the position when the house is in the name of the spouse who has deserted?

A12: The other spouse can apply to the court for an Order transferring the ownership to his or her own name. The home can still not be sold without the consent of both spouses, unless the court dispenses with the consent of the deserting spouse. It is, however, necessary to have the address of the deserting spouse so that s/he can be given notice of the proceedings.

Q13: Can a spouse sell or dispose of household furniture/ equipment?

A13: Under the Act, the Court may make an order prohibiting the disposal of necessary household goods. The advice of a solicitor should be sought without delay.

Q14: Is legal action very expensive?

A14: Yes, unless you are entitled to Civil Legal Aid. This is means tested. It is important to contact the Law Centres as soon as possible. They will advise you and assess your means, If housekeeping money is your only means, this will not be classed as income. The other spouse's income is not taken into account when assessing your liability for Civil Legal Aid.

The phone numbers of the Civil Legal Aid Centres throughout the county are listed in the telephone directory.

Q15: What is a shared home?

A15: The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 creates a Civil Partnership Scheme for same sex couples. Under this Civil Partnership Scheme, the home of Civil Partners is referred to as the "shared home" rather than the family home.

Q16: Is the shared home of Civil Partners protected under law?

A16: Yes, under The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 the shared home of Civil Partners is protected in the same way as the family home of spouses.

As with married couples, the shared home cannot ordinarily be sold, leased or mortgaged by one Civil Partner without the prior written consent of the other. While it is possible to dispense with consent, this may only be done by court order and in circumstances where appropriate alternative accommodation is available to the non-owning Civil Partner.

 

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All legal information provided on the AIM Family Services site is a general overview of family law relating to Ireland. Persons considering legal action should take professional legal advice, and references/contacts regarding organisations, persons, agencies etc. are given for reference only. AIM is not responsible for any act or omission arising from use of same.

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