Is the Family Home Protection Act fit for purpose?

04/04/2018

John Garaghy questions whether an important piece of historic legislation has lived up to its objectives.

Historic legislation

The Family Home Protection Act 1976 comprises one element of the social legislation, beginning in the 1960 and extending to the 1970s, that transformed the position of women by vesting legal rights of succession, maintenance, guardianship and barring orders. As a result of the act, married women were granted a prior right of prohibition on the sale or mortgage of the ‘family home’.

The act itself was not politically controversial – it passed in two weeks, with support from all parties. The primary purpose, Justice Minister Paddy Cooney stated, was “to prevent a vindictive spouse from selling the family home without reference to the wife”. The act became operative on 12 July 1976, and became an integral part of conveyancing practice.

Analysis and criticism

While the legislation has been criticised by some scholars in conferring a ‘beneficiary’ rather than a ‘statutory’ right, it has been effective in protecting spouses and children from rash or vindictive spouses, and has been proactive in enabling joint ownership. However, John Garaghy – a retired solicitor studying for a Masters in Modern Irish History at Trinity College Dublin – writes that a certain “legal flabbiness” in its drafting has prompted much litigation. In a viewpoint article for the Gazette, he discusses the context and impact of this important legislation.

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