Family Home and Family Law Acts 2009 – Legal Office Notice No. 3 of 2009
The attention of settling staff is drawn to the Practice Direction – Family Home and Family Law Acts 2009 which replaces the 1998 P.D. The new direction fundamentally alters the Authority’s approach to the checking of transfers and mortgages and flows logically from the amendments to the Family Home Protection Act 1976 Act introduced by the 1995 Family Law Act. The 1976 Act originally provided that a conveyance of the family home by one spouse without the prior consent of the other spouse, was void. As a result of the 1995 Act, such a conveyance is voidable only.
The P.D. sets out the reasoning behind the change in practice and directs that the contents of Family Home Consents and Declarations are not to be checked but filed with the instrument on completion. The following matters, however, need to be checked before registration:
- That there is no entry on the folio as to a statement of invalidity under Section 3 (8) of the 1976 Act, as inserted by section 54 of the 1995 FLA
- That there is no entry of lis pendens on the folio under Section 3 (8) of the 1976 Act, as inserted by section 54 of the 1995 FLA
The Law Society has been consulted on the matter and will be advising solicitors of the change in practice, and that the Authority will no longer be bringing any errors to their attention.
As the new practice rolls out there will, doubtless, be some queries arising. These can be directed to the Deputy Registrars via the relevant HEO or Regional Manager.
It is to be emphasized that where family home documentation, declarations etc., is furnished with an application it is not to be returned to the lodging solicitor but is to be filed with the Instrument.
23rd March 2009