asked the Minister for Justice if it is his intention to amend the Family Home Protection Act, 1976, having regard to the fact that the Act provided no protection to a spouse in a situation where a creditor applied for the sale of a family home on foot of a judgment mortgage against the family home, for the amount of a debt obtained against the other spouse on the basis that the Family Home Protection Act only applies to conveyance by one or other of the spouses and not by a third party and that consequently a judgment mortgage is not a conveyance within the meaning of the Act, but an operation of law, resulting in a situation whereby a spouse can freely obtain an unsecured loan, which if not repaid can be registered against the family home and ultimately lead to the sale of the family home, in spite of the absence of consent by the other spouse.
Written Answers. - Family Home Protection Legislation.
I have no proposals to amend the Family Home Protection Act, 1976, so as to apply it to judgment mortgages obtained by third parties. When the Act was initiated the then Minister for Justice made clear in the House that the legislation was not intended to apply to judgment mortgages — though there is provision whereby a spouse may apply to the court for protection if the other spouse is behaving improvidently with the intention of putting the continued ownership of the family home in jeopardy. In addition if the Act were to give protection to spouses against sales by judgment mortgages no doubt it could operate to the disadvantage of spouses who seek in the ordinary way to arrange credit.
Recent case law in any event suggests that a spouse who is in actual occupation of a family home and who has acquired a beneficial interest in that home has rights of occupation as co-owner of the home which would be binding on a judgment mortgagee seeking a sale. Moreover, the effect of the legislation which is being prepared in my Department to give each spouse equal rights in the ownership of the family home and contents will be to strengthen the position of the non-owning spouse. A recent High Court decision which is under appeal to the Supreme Court could also have implications for this area.