Family Home Protection Act and repossession proceedings

[Brendan Burgess]

This came up in the Registrar's Court on Friday last. I am surprised that it had not been mentioned in any of the cases I have attended before.

The proceedings were issued against the husband as the property and the mortgage is in his sole name.

His wife appeared in the court and the Registrar was extremely clear: "You have no right to address the court" and would not allow her to speak. She appeared to have lodged an affidavit which she handed to the Registrar.

The wife said that she was not aware of the proceedings until recently and she had asked the bank for information, but they had refused to give it to her. The wife asked the Registrar to order the bank to share information with her, but the Registrar said that she had no power to make such an order.

As it was the first listing in court, he got an automatic adjournment. But the Registrar told the bank to notify the wife.

1) Can a spouse who is not named on the mortgage object to an order being granted?

2) When a mortgage is granted, the borrower usually swears a declaration under the Family Home Protection Act. But what happens if the declaration is false?

3) If the borrower remortgages and the bank does not get the wife to sign a waiver(?) under the Act, what are the implications of that?

Brendan

 

[Jim Stafford]

A spouse can claim a beneficial interest in a property (provided she contributed to the property etc.)

Whilst the bank would be deeply unhappy with an incorrect Family Home Declaration being sworn, the fact is that sometimes an incorrect family home declaration is sworn. The bank would have a claim against the husband, but given that the husband is already insolvent any such claim would have little value.

The best way to have the wife's interest noted in the property is to register a Lis Pendens on the property, as the bank would then be forced to deal with her.

Jim Stafford