Can a farmers wife block a land transfer to son

Toby12345

Hi all,

I hope this is the correct place to post this.

I have a simple question. Can a farmers wife block a land transfer to their son. Is it correct that the farmers wife has to sign a document stating the family home is not being affected? And if this document is not signed the transfer cannot be processed.

Atlantic Dawn

Who's name is the farm under?

Pat Mustard

Toby12345 wrote: »

Can a farmers wife block a land transfer to their son. Is it correct that the farmers wife has to sign a document stating the family home is not being affected? And if this document is not signed the transfer cannot be processed.

First, leaving aside issues of severance of joint interests, many farm holdings are jointly held between husband and wife. If there are two owners, both owners would have to join in the deed which conveys the land.

Secondly, assuming that the farmer is the spouse who owns the property and if his spouse is a non-owning spouse, it is necessary to look at sections 2 and 3 the Family Home Protection Act 1976.

3.—(1) 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, subject to subsections (2) and (3) and section 4, the purported conveyance shall be void.

Looking at the definition of the family home, per section 2 of the Act:

2.—(1) In this Act “family home” means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving.

(2) In subsection (1) “dwelling” means—

(a) any building, or

(b) any structure, vehicle or vessel (whether mobile or not),

or part thereof, occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.

So a family home can include the dwelling in which the married couple have resided, to include the garden and ground usually occupied with the dwelling. There is caselaw on this subject as well but I'm not going try to dig that out as it would take additional time to do so.

Looking at the Act, any conveyance of the 'family home' is void if it does not have the prior written consent of the non-owning spouse.

However, if the relevant land is owned by the farmer and if he proposes to transfer that land, and if it does not comprise the family home as defined in legislation and caselaw, then the Family Home Protection Act alone should not bar the conveyance.

Short answer: if the land involved does not comprise a 'family home' as defined by law then the Family Home Protection Act 1976 will not void the conveyance.

Toby12345

Wow, that is a lot of good info. Thank you.
The land in question is all in the farmers own name. And it is a separate block of land to where the family home is.


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