ABSTRACT
Where the home is in joint names, in theory there should be no difficulty in preventing unilateral disposition by one spouse, since the signature of both will be required for any disposal. However, it is not unknown for a third party, at the instigation of one spouse, to impersonate a spouse whose participation is required, in which case it may be possible for the disposition to be set aside. However, sometimes a spouse will already have been involved in a prejudicial transaction. This area of law is already subject to certain principles pursuant to the decision in Barclays Bank plc v O’Brien [1994] 1 FLR 1, HL, which require the lender to show that a spouse who participated in such a transaction at the behest of the other spouse, in whom reliance and trust was placed in financial matters, fully understood the nature of the transaction and nevertheless entered into it willingly and knowingly. If the spouse was so reliant, and the transaction can be shown to be disadvantageous to that spouse, it can be set aside, but where undue influence or fraud can actually be proved then it will not be necessary to show that the transaction was actually disadvantageous to the spouse who was imposed upon. Usually the lender will need to show that effective independent legal advice was obtained by the deluded spouse if the transaction is to stand, but this whole area of law has recently been surveyed by the House of Lords in the early summer of 2001 and this has effected radical changes in the law since there is now a prescribed task list for both lender and legal adviser to the spouse offering security for the other spouse’s debt.
