Can a constitutional challenge to the Family Home Protection Act 1976 impact possession proceedings?

The High Court, in an appeal from the Circuit Court, found that Promontoria Scariff DAC (the "Plaintiff") was entitled to an order for possession of a principal private residence, (the "Property") on foot of a legal mortgage under section 3 of the Land and Conveyancing Law Reform Act 2013. The Plaintiff was found to be entitled to such an Order despite an application being made by the unmarried partner of the Defendant seeking an adjournment of the possession proceedings until such time as her constitutional challenge to the Family Home Protection Act 1976 (the "1976" Act) had been heard.

Background

The Defendant took out two mortgages, the first in 2005 and then a remortgage in 2007. The mortgage had initially been with First Active plc which was then transferred to Ulster Bank Limited and subsequently to the Plaintiff. Security for the mortgage and remortgage was over the Property and the Defendant had signed the loan offer. The Defendant accepted the terms of each loan facility and agreed to complete a Mortgage Deed. In accepting the terms of each loan facility, the Defendant covenanted to abide by the terms of the mortgage which included an obligation for repayment however the Defendant defaulted on the repayments due.

Title to the Property was unregistered and as the loan was entered into prior to 2009 and was not a family home the Property was conveyed to the bank whereby the bank had the right to possession of the Property and the borrower retained the equity of redemption. As such, when the Defendant defaulted on the mortgage the Plaintiff was entitled to make an application for possession of the Property.

The Family Home

Section 2 of the 1976 Act states a "family home means, primarily, a dwelling in which a married couple ordinarily reside". The Defendant declared by way of statutory declaration dated 28 July 2007 that the Property was not a family home and confirmed in this declaration that he was never married. The Defendant has a life partner, Ms. Ooi who lived in the Property with the Defendant and their three children. Ms Ooi was not a named party on the 2005 mortgage or 2007 remortgage and had no legal interest in the Property. When making the order for possession the Plaintiff treated Ms. Ooi as an occupant and she was served with possession proceedings in accordance with Order 5B of the Circuit Court Rules (Actions for Possession and Well-charging Reliefs) 1 and Practice Direction CC17 (Proceedings for possession or sale on foot of a mortgage) of the Circuit Court.

High Court decision

On 13 February 2024, two days before the hearing of the appeal Ms. Ooi issued a new set of proceedings - Yeoksee Ooi v Ireland, the Attorney General, Brian McDonagh and Promontoria Scariff DAC (Record No. HP 2024/698). These proceedings are inter alia a constitutional challenge to the 1976 Act. Ms Ooi claims that the 1976 Act violates her family rights by way of her and the Defendant being unmarried and is seeking various declarations in the context of her unmarried status.

Ms. Ooi made an application on the morning of the Plaintiff's possession proceedings seeking an adjournment of the current appeal until such time as her case was decided.

Conclusion

The High Court found that the arguments put forward by Ms. Ooi concerned a separate matter and none of which were relevant to the possession proceedings. Ms Ooi had no privity to the contract on foot of which the plaintiff was entitled to possession of the property. The Court refused to adjourn on the basis that a constitutional challenge has been made and the issues raised were not a matter for this Court. The Court was satisfied that the Property was not a family home and Ms Ooi had been served correctly as an occupant of the Property. The Court dismissed the appeal and affirmed the Circuit Court order allowing the plaintiff recover possession of the Property.

Promontoria Scariff DAC v McDonagh [2024] IEHC 176

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