The High Court refused an appeal by a wife seeking the temporary transfer of the family home into her sole name while family proceedings continued. It affirmed the Circuit Court’s order restraining judgment mortgages against the property without the court’s leave, on the assumption that the Circuit Court had jurisdiction to make that order as an incident of its jurisdiction under section 36 of the Family Law Act 1995.
The appeal concerned an interlocutory order made on 13 December 2012. The wife had asked for the transfer under section 5 of the Family Home Protection Act 1976, pending determination of the underlying proceedings. Those proceedings remained before the Circuit Court, where a question was to be tried about the nature and extent of her beneficial interest in the home.
The wife’s affidavit said the couple had married in 1989, had three children, and held the home jointly. It said there was an outstanding mortgage balance of €160,000. She described herself as a homemaker and her husband as a professional person and businessman involved in property dealings. She said she had become aware that unidentified lenders had brought recovery proceedings against him over debts of about €3.5 million, and feared for the home and her family’s security. The judgment records no suggestion that he had secured, or tried to secure, those borrowings against the home.
The husband did not appear in the appeal. The judge was satisfied from filed affidavits of service that he had notice. The judge also noted the lack of evidence about the husband’s assets or income and the value of the home. There was no evidence that the marriage had broken down, that the mortgage was in arrears, or that the husband was unwilling to address his debts.
The court held that the evidence did not establish the deliberate conduct and intention required for relief under section 5(1). The debts arose from past property transactions, with no suggestion of further transactions. The court distinguished earlier cases where a spouse’s conduct and circumstances supported an inference of an intention to put the family’s residence at risk. It said substantial further evidence would be needed even to assess the natural and probable consequences of the borrowing.
The court also observed that the husband’s creditors were not parties and were not shown to have notice of the application. It declined to make the requested transfer, while affirming the Circuit Court’s restraint on judgment mortgages without leave. The judgment’s conclusion is limited to that interlocutory appeal; the underlying Circuit Court proceedings about the wife’s beneficial interest remained extant.