Family Home Protection Bill, 1976: Committee Stage.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:

In page 3, subsection (1), line 14, to delete the words "with just cause".

This is a drafting amendment. Its purpose is to ensure that the issue of whether a wife is in desertion—in which case her consent will not be required—is to be determined by the court under section 4 (3). If the words "with just cause" remained, a husband could sell a home when his wife had left it and seek to argue subsequently that it was not a family home for the purposes of the Act. The question whether the wife was entitled to leave and thus was not in desertion is one that ought to be resolved before the sale. This is the clear policy of the Bill. I mentioned in my Second Stage speech that I would be proposing an amendment on these lines.

Amendment agreed to.
Section 2, as amended, agreed to.
NEW SECTION.

I move amendment No. 2:

In page 3, before section 3, to insert the following section:

"(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.".

The purpose of the amendment is, as I indicated during the debate on the Second Stage, to delete the existing section 3 and insert a new section. I indicated after listening to the Second Stage debate that I had a worry about subsequent purchasers. This amendment is to protect purchasers for value who acquire the home from the original purchaser from a spouse where for example, the consent of the other spouse was not obtained. The amendment makes it clear that they will be protected if they are in good faith and provide value. This is the same criterion as that which applies to the original purchaser from the spouse except that in the latter case full value as defined by the section must have been given. The substance of the requirements regarding notice is the same in the amendment as in the original section, although expressed in different terms.

What I am doing here is incorporating section 3 of the Conveyancing Act, 1882. The conveyancing obligation in that section will apply to all purchasers under this proposed section. I will give an example. Supposing H, the husband, sells the family home to A without the consent of his wife and for what is clearly much less than its value. A, who gets no title, then sells to B. If B is a purchaser in good faith for valuable consideration, he will obtain a good title. However, if B, being a husband, subsequently sells to C who is a purchaser in good faith for value, but not full value, C will get no title although C, being a single man, may give a good title to D if D is a purchaser in good faith for valuable consideration. This is a technical provision designed to ensure that a conveyancing defect will not go on and on along the line.

If it happened along the line that everything was not in order as and from the first sale from A to B, and X finds himself with something he should not have, that the earlier sale should not have happened, is he protected?

He is protected provided he is a purchaser for full value, or value, as the case may be.

Who determines the value?

In the case of a dispute it would have to be determined, but normally if a home is offered for sale in the open market the bid price would be taken as the full value.

Amendment agreed to.
Section 3, as amended, agreed to.

Acceptance of this amendment involves the deletion of section 3.

Progress reported; Committee to sit again.