THE Supreme Court decided yesterday to return a case to the High Court in which a separated wife is challenging an order for possession of the family home.
The court allowed an appeal brought by the wife against a decision of Miss Justice Carroll in the High Court last year in which she held Allied Irish Banks plc was entitled to an order for possession of a house in Howth, Co Dublin.
The defendants had been separated since 1992. They bought anew family home in Howth and £100,000 was borrowed from AIB. The house was conveyed to the husband on December 5th, 1989. Three years later, he executed a mortgage in favour of the bank.
On December 1st, 1989, the wife signed a form of consent for the purposes of the Family Home Protection Act 1976 agreeing to the mortgage given to her husband.
In 1992, he stopped making payments and two years later the bank began court proceedings.
Mr Justice Blayney, giving the Supreme Court judgment, said the wife claimed she believed the form of consent she signed, which had been prepared by her husband's solicitor, was a document connected with putting the family home into the joint names of herself and her husband.
The bank, said Mr Justice Blayney, said it did not know what had taken place between the wife and her husband's solicitor. Miss Justice Carroll accepted the bank's submissions.
The wife said the judge, had said she would not have agreed to buy if she had been told the house was going to be conveyed to her husband solely and that the documents and its effect were not explained to her by her husband's solicitor. This account was disputed by the solicitor.
There was a clear dispute of fact and the question of the validity of the wife's consent would depend on how it was resolved. On the claim by the bank that it was not concerned with the issue of the validity of the wife's consent, Mr Justice Blayney said that involved issues of fact which had to be established by the bank.
The Family Home Protection Act provided that "if any question arises in any proceedings as to whether a conveyance is valid . . . the burden of providing that validity shall be on the person alleging it."
Mr Justice Blayney said the bank had to show it did not have any actual or constructive notice of the possible invalidity of the consent. The matter was remitted to the High Court to decide the issues on oral evidence.