A critique of the legal protections afforded to the matrimonial home in Ireland: lessons from British Columbia

This doctoral thesis analyses the legal protection afforded to non-owning spouses in Ireland in relation to the family home through the different stages of a marital relationship – inter vivos, on death and on divorce. Although the property rights of spouses continue to be held on the basis of title and are not automatically modified by marriage, some modifications to the separate property regime have taken place through the intervention of equity and the legislature which mitigate the harshness associated with it, in particular, in relation to the ownership, control and occupation of the family home. This thesis questions whether these interventions are sufficient or whether further protection is needed for non-owning spouses in relation to this important asset. To this end, the thesis considers what lessons may be learned from the law of British Columbia, Canada on this issue. What emerges is that, in certain circumstances, considerable protection is currently afforded by Irish law to non-owning spouses vis-à-vis the family home. Areas of particular strength include the restrictions against the unilateral disposition of the family home imposed by the Family Home Protection Act 1976 and the provision of the legal right share and the right to appropriate the family home in satisfaction of such a share by the Succession Act 1965. By contrast, the protection afforded by the law in British Columbia at these points in a relationship is much weaker. On the other hand, the British Columbian approach to spousal provision on intestacy appears more likely to secure the family home for the benefit of the non-owning spouse than the Irish approach and British Columbia also confers non-owning spouses with much more substantial protection on marital breakdown than is afforded pursuant to the Irish Family Law Acts. In these latter areas, in particular, the author argues that important lessons can be learned from the experiences of this other jurisdiction to shape the future of Irish law. On this basis, this thesis presents practical and viable methods of strengthening the protections which currently exist inter vivos and on death, as well as formulating an alternative regime based on a deferred community of property akin to that applied in British Columbia to deal with matrimonial property division on marital breakdown. When combined, the implementation of these proposals for reform in Ireland would ensure much more comprehensive protection for the family home and a system of matrimonial property law which is more theoretically consistent in its application throughout a marital relationship.