Disposal of sole owned house in a marriage

I have been through this. In theory, the purchaser’s solicitor simply needs to establish that the relevant property has never been a “family home” as respect you and your spouses. In practice, however, they will rarely rely on due diligence and will insist that the non-owing spouse swears a family home protection act declaration that they do not object to the sale. In my case, I was selling to someone I had known for 30 years and could clearly establish that my spouse and I had not lived in the property (nor indeed in Ireland at the relevant times) and the solicitor was intransigent. This resulted in a visit to a Portuguese notary for a document which clearly they could not understand.

If your spouse is unwilling to provide this, I suspect you will find it difficult to sell. It does not in any way grant an interest in the property to your spouse.

No. The second property that is in your sole name does not belong to both of you; it belongs to just you. If you die, it will not transfer to her unless your will so provides, or she takes it as part of her legal entitlement to a share in your estate (and, unless it is the family home, she cannot insist on taking it). If you sell the second property, the proceeds do not belong to the two of you jointly; they belong to her you alone.

There is no rule in Ireland that the assets of each member of a married couple belong to both spouses jointly. Some countries have such a rule, or a version of such a rule, but Ireland does not.

If you separate or divorce, at that point a court may make orders transferring your property, or some of it, or a share in some of it, to your spouse (and it can make similar orders in relation to her property). But that's "may", not "must". And if the court does order the transfer of a share, it need not be a 50% share. And until those orders are made, you own your property and she owns hers.

Hmm… well I think we'll just stick to the very sensible principle of 'what is mine is hers' and 'what is hers is mine'. That is the general basis of marriage and why people throw their lot in with each other. It's particularly important in families where there is one primary income earner.

Well, A will need the consent of the other spouse to transfer the family home to Myco to begin with. So all you're really doing is bringing forward the need to obtain the spouse;s consent to to the transfer of the property.

If the spouse does consent and the home is transferred to Myco then, as nompere points out, it cease to be a principal private residence for capital gainst tax purpose, so if there is any gain on a later sale that will be chargeable to capital gains tax.

Plus, I'm not convinced that doing this will actually avoid the need to get spouses consent when Myco later sells the house. What the Family Home Protection Act says is that "where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then . . . the purported conveyance shall be void". If Myco is wholly controlled by A, so that A acts for or on behalf of myco in selling the house, could the spouse argue that, although the interest being disposes of does not belong to A, A is nevertheless instrumental in conveying it to the purchaser, so the spouse's consent is required.

The limiting factor here is not what the law requires; it's what a purchaser will accept. Purchasers will expect the spouse's consent, or a completely satisfactory and uncontroversial demonstration that no consent is required. If the house has been transferred into a holding company with the apparent purpose of evading the protections afforded by the Family Home Protection Act, no purchaser is going to accept the risk of the efficacy of that device being challenged. You'll be told in no uncertain terms that you can produce the spouse's consent, or you can put the house back on the market and find yourself a different purchaser — if you can.

So we've got . . .

(a) a residential property

. . . which is currently owned by . . .

(b) a limited company, Myco.

Myco is wholly owned and controlled by A, who is married to B. B has no stake in or involvement with Myco.

The house is offered for sale. The seller is, obviously, Myco. A is the director who acts on behalf of Myco in relation to the proposed sale.

As purchaser, if the consent of B is not being offered, I think what I'd want is unimpeachable assurance that there is no possible argument that the house might be B's family home. A statutory declaration by A that B has never lived in the house, either alone or together with A, but I'd be more satisfied if the statutory declaration came from B.

That might not be possible. A and B might be estranged, for instance, or B might be suffering from dementia. A purchaser's attitude to being offered a declaration by A would be affected by knowledge of circumstances like that.

Also relevant would be considerations like: why is a residential property held in a close company in the first place? That's not a common arrangement. If the purchaser suspected that it might be part of an attempt to evade the protection of the FHPA, obviously he'd be very leery. But if a reasonable and plausible explanation that has nothing to do with the FHPA were offered, that might comfort him.