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Ask Buachaill Your Own Question
Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10955
Experience:  Barrister 17 years experience
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This is a house in Ireland and requires information under Irish

Customer Question

This is a house in Ireland and requires information under Irish Law.
I am in arrears on my mortgage and the bank are bringing me to court for repossession. I lost my job and I am just back working in the last 12 months. I have paid 1,400 per month since January(full mortgage 2,400) but the bank aren't interested.
I got the mortgage in 2002 and a top up in Feb 2006. My now wife(married in March 2006) has lived in the house since 1999. My Children aged 12,10,7 were all born in the house.
My question is "Does my wife have a right over the house as she never gave consent for me to mortgage the house and under the Family Home Protection act 1976 it states that she has a beneficial interest".
Submitted: 2 years ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 2 years ago.
1. There are two things at issue here. Firstly, your wife will have a half share in the house, as she is your wife and was married to you (1999) before you took out the mortgage in 2002. So she has a half share. Secondly, if the bank were going to properly charge her half share in the house, they ought to have sought her consent under the Family Home Protection Act, 1976. As they didn't, it means that the mortgage only catches your half share in the house. So, currently, in law, only half the house is covered by the mortgage. So if the bank seek to repossess the house, they are only going to be able to repossess half the house. So your wife can essentially prevent them doing so. However, in practice, it merely means that your wife can go to a different bank and obtain finance to buy out your half share in the house, thereby coming to own the full house. You can pay her rent for renting half the house so as to provide the funds to get a fresh mortgage for her buying the house. The bank who is repossessing only gets half the value of the house. You may have to go bankrupt as part of the process, if the bank don't settle with you, so that you can obtain a discharge from the debt you owe to the bank. Otherwise, you will walk around still owing the remainder of the mortgage debt.
Customer: replied 2 years ago.

In the above answer, you stated that my wife and I got married in 1999. My now wife moved into the family home in 1999, but we didn't get married until 2006. I took a mortgage out in 2002 and then remortgaged in 2006. We also had a child in 2003 before we got married in 2006. Would my wife have legal entitlement since 1999.

Expert:  Buachaill replied 2 years ago.
2. Dear Mick, Yes, your wife would have had a legal entitlement since 1999, so long as she contributed to mortgage repayments or to the general living costs of the household. There is no precise date when your wife's half share was "created". This is a fluid question in law and can be interpreted in your favour. However, the second point I made is now incorrect. Whilst the law has since been amended, in 2002, the Family Home Protection act did not apply to unmarried couples. So this point is no longer applicable. However, the bank could not mortgage your wife's half share in the house by merely getting you to sign. This was an error on the part of the bank. However, it means that she can get her half share clear of the mortgage. However, the principle still applies - you should seek to get your wife to buy out your half share whilst you going bankrupt and paying off the bank what you can but without carrying the debt load around with you.
Customer: replied 2 years ago.

The house was never in my wife's name. It has been in my name only. I bought the site and built the house. Does this make a difference

Expert:  Buachaill replied 2 years ago.

3. Dear Mick, whilst the fact the house has been in your name is of significance, this does not prevent your wife obtaining an interest in it. It is most common in Ireland for the house to be in the husband's name but this does not prevent the wife from obtaining a half share in it. It is relevant that you bought the site and built the house but this does not determine the issue of who now owns the house.