Have you been told not to sign things without reading them? Have you signed documents without reading them despite this advice? Were any of those documents legal documents or forms or documents with a Harp on top or the name of a well-known establishment or Bank emblazoned at the head on the top of what you are signing? Were they presented to you by your partner/spouse with another document covering them or half his or her arm obscuring the document from your view or did you even look or check to see if there was another piece of paper sitting on top of what you were signing? Were you told what they were, did you ask or did you just sign? Were you told that your signature was required immediately as they had to go in the post straight away? You would not be alone if you did sign in such circumstances and, of course, as a general rule, we should be able to trust our partners and spouses. Experience, however, teaches otherwise. Few people would have much sympathy for you if you did sign in those circumstances. The above kind of situations happens more to women than men in my experience since men usually do the business side of a couple’s affairs and are the ones engaging with banks, solicitors, and revenue. Not always but generally speaking. Those people with little or no sympathy are generally the same people who discourage prenups or any form of financial inquiry prior to marriage and would argue that there should be complete trust in those relationships. Double standards? You betcha. Cosmetically, this is a brave new world of equality and fairness but many of the old double standards lie underneath. In some ways, we were better off when we knew they were there because the term political correctness had not been invented and so people articulated their prejudices freely. In short, we knew the enemy then for what they were.
Why would a woman, in particular, sign forms without asking questions in a marriage or relationship? It depends on what the marriage is like, in that many women are bullied within marriages or relationships, suffer domestic violence or cruelty and often live with depressed and mentally ill partners as well as alcoholics, drug addicts etc. Of course, all of this could apply to men too and I am not denying that. It just so happens, however, that it mainly applies to women and the statistics bear that out. When women live in those circumstances and many do for quite some time, they have usually hit rock bottom in the self-esteem stakes or are completely cowed or both. Many of these relationships have settled into a survival mode which is quite often based on “I won’t ask any questions and I won’t rock the boat”. Such women know from long experience the outcome of asking too many questions or thwarting their partner or spouse in any way.
The question is – what, if anything, can be done to help such women i.e., the kind of woman that consents to the sale of property or to a re-mortgage of a house or family home without knowing what she is signing or why? Where should the onus lie to ensure that such women are fully informed and independently advised of their rights? The current legislation governing some of these situations is The Family Home Protection Act 1976 and that Act says that a spouse cannot convey i.e., transfer (that includes a mortgage) a family home without the prior written consent of the spouse even if that spouse is not an owner. A family home is defined as a house in which a married couple ordinarily reside and can include a residence in which they previously resided. It does not include a marital asset in which they never resided and which is in one party’s sole name. It is also important to note that while a bank or building society giving a mortgage is obliged to seek your consent prior to granting the mortgage, they have no obligation to meet with you or to ensure that you get independent legal advice. In addition, people to whom your partner or spouse owes money and who as a result of not being paid the full or any of the amount owing, seek to register a judgment debt against your home, do not have to have your prior consent and can register without your knowledge. Assuming for the purposes of this discussion that the property in question is a family home then your prior written consent is required but you now know that it can be given on the kitchen table, it does not have to be given in a formal setting. Should such an important signature only be given in a proper and formal setting? Absolutely. It should also be given privately in as congenial but formal circumstances as possible to ensure that you really are in agreement and know what you are doing. There should be a legal obligation on the Mortgagor to ensure that he or she not only had that interview with the spouse or partner but furthermore, that advice was given and rejected to seek independent legal advice. The consequences of these requirements should be sufficiently onerous to ensure compliance and not just lip service to providing more elbow blocking documents to be signed. Who should cover the cost of independent legal advice to the non- owning partner or spouse – the person seeking the mortgage and it should form part of the application for the mortgage? The Application for the mortgage should be kept on file and be available to a spouse or partner or request from their solicitor. The Application should ask if the person applying is married or in a cohabiting or civil partnership relationship? The Application should ask the Respondent to consent to an independent interview with spouse or partner in the context of this application and to agree to discharge cost of legal consultation.
We are paying a lot of lip service to domestic violence and it is about time that discussion became serious and real but we need to think outside the box on these matters. In practice, I have come across far too many situations where I genuinely feel that the Banks, in particular, are way too casual in these matters.
What happens if one spouse is in charge of paying the mortgage on the family home or one spouse is responsible for monitoring the banking finances and cancels a standing order without the knowledge of the other. Again, is the Bank’s obligation in this matter satisfied if they simply write a letter to the two of them sending it to the husband/wife’s business address without asking any questions or to the family home without knowing if the wife might see such correspondence or the husband as the case may be? Is it even satisfied if they write to both of them separately at the home address but it is obvious from the envelopes that it is the same letter? In common with all family law solicitors, I have been told by wives, husbands, and partners of never seeing any such letters or being told about them and not knowing about failures to pay and arrears on the mortgage as well as debts being run up. Here again, we need to think outside the box and ensure that the Banks have obligations which go beyond just writing letters without thinking about what might be going on. God Knows they make enough money so giving them some responsibility is hardly out of the question. Of course, they will resist it, everyone resists new responsibilities but they will adapt. Fear not. Even if their only obligation was to ensure that the wife or husband in such situations had to take legal advice and that they could not give the loan, the mortgage, cancel direct debits or clear joint accounts (regardless of the terms on which the said account was held) without the consent in writing from the spouse or partner accompanied by a letter from a solicitor on headed notepaper confirming having met the party and been satisfied that the person wanted to consent or knew what was going on or as the case may be. Some people will feel that is going too far, I am wondering if it is far enough.
For the rest of you, not bullied, not abused in any way, whose husbands or wives have no known addictions and who can check everything financial and property wise with no difficulties, and who still sign without knowing what they are signing – what can I say? There is one born every minute.