Can separation circumvent protection under the law?

T

tripmann

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Hi,

If a spouse is refusing to consent to the sale of the family home, can the other person force a legal seperation for the purpose of circumventing the protection under the family home protection act in order to force the sale of the home? The person in question is insisting they were advised that they can, but it seems that would render the protection pointless.

Also, could anybody advise on the type of solicitor I should consult on the matter.

Thanks

T
 
If the parties own the property jointly, then one spouse cannot sell without the other spouse joining in the deed. Its not consent- consent as such is generally taken to mean consent of a non owning spouse. In that case, the Court can "dispense" with the consent of the other.

If it is the case that they are joint owners, then yes, if there are grounds for separation, one spouse can seek a Judicial Separation and seek the sale of the family home as a relief. The Court may or may not order that.

Specific circumstances dictate the course of action - seek specific legal advice on the specific circumstances.

mf
 
Apologies for the delay. One party owns the house and wants to force the sale. The spouse wishes to remain in the property as they are elderly and have support nearby. The sole owner has stated that they do not want to seperate from the spouse but will do so in order to circumvent the elderly persons protection under the family home protection act.

Is that even legal, or is it a loophole?

Thanks again.
 
Why does one person want to sell? Is it financial? Is there a really good reason? Is it vital or essential?

I think it would be very unlikely that a Court would allow one spouse to sell an elderly persons home by dispensing with the non owning spouses consent unless there was a supremely pressing reason. And if one goes for Separation, again, it is very likely, unless there was a supremely pressing reason, that a Court would not permit the sale of the family home.

So, no, its not enough to say that by forcing a spouse to separate that you can circumvent the Family Home Protection Act of 1976. I suspect that there is an element of urban myth about all of this - as in, once separated, parties waive their Family Law rights. They might do that in a settlement situation but it is by no means a for gone conclusion in a hard fought Judicial Separation application.

mf
 
"Why does one person want to sell? Is it financial? Is there a really good reason? Is it vital or essential?"

Unbelievably, no. The owner spouse simply wants to sell to move back to the area they moved from some time ago. The other person does not wish to do so as they are getting on and have their family close where they are. They also had a major health episode a few years ago and feel that the stress of moving house will be too much for them. They have also made reasonable provision for the owner to rent another property in the area of their choice, but the person is not interested.

Thanks for your information on the matter, its genuinely a great help.

Is it a family law specialist solicitor we need to speak to?
 
tripmann said:
Apologies for the delay. One party owns the house and wants to force the sale. The spouse wishes to remain in the property as they are elderly and have support nearby. The sole owner has stated that they do not want to seperate from the spouse but will do so in order to circumvent the elderly persons protection under the family home protection act.

Is that even legal, or is it a loophole?

Thanks again.
Click to expand...

A Judicial Separation can only be granted if one of the grounds specified here http://www.irishstatutebook.ie/1989/en/act/pub/0006/sec0002.html#sec2 is fulfilled. From what you are saying there are no grounds and this would form part of any defence. I also agree with mf1.
 
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