Family Law Considerations in Respect of Option Agreements

An option to purchase land passes an equitable interest in the property to the prospective purchaser (Wylie and Woods, Irish Conveyancing Law, paragraph 8.04). Accordingly, it would seem clear that an option comes within the definition of ‘conveyance’ in the Family Home Protection Act 1976, being a “conveyance” of an “interest” (defined in the act as including equitable interests) or, alternatively, “an enforceable agreement (whether conditional or unconditional) to make any such conveyance”.

If a spouse does not consent to an option for the sale of a family home and, following the exercise of the option, refuses to consent to the subsequent contract for sale, the option will be of no value to the prospective purchaser.

It would also appear that an option would fall within the definition of a ‘disposition’ (being any disposition howsoever made, other than a disposition made by a will or codicil) within the meaning of section 37 of the Family Law (Divorce) Act 1996 and section 35 of the Family Law Act 1995, and therefore liable to be held to be a ‘reviewable disposition’ within the meaning of those two sections.

Accordingly, it would appear that a spouse’s consent and the usual supporting statutory declaration should be sought whenever any person who is married enters into an option to sell any interest in land.