A recent case in the High Court refused to protect the family home of a couple from repossession by the Bank. The couple were claiming that the wife did not receive independent legal advice as required by the Family Home Protection Act, 1976 and therefore the bank could not take possession of the family home.
In this matter – Irish Nationwide Building Society -v- Patrick Rafferty and Patricia Rafferty [2012 IE HC352] – there was no genuine argument in relation to the family home protection. The husband and wife had both signed the mortgage putting up the family home as security for a loan back in 1992. They could not now try and rely on the Family Home Protection Act, 1976 as a way of defeating the banks charge.
As the Judge pointed out in his decision, the Family Home Protection Act, 1976 was there to defend the family home if one of the spouses was not a party to the transaction. In other words, if the wife had not signed the mortgage and the husband had gone ahead and got it behind her back, or without her receiving proper advice, then she could reply on the the Act to ensure the bank could not take the house.
In this case that did not apply. They had both entered into the agreement and signed the mortgage and could not try and hide behind the protections of the Act to defeat the bank.