The Gazette 1992

GAZETTE

MARCH 1992

legal ownership. This would be very difficult, since in reality he probably had not contemplated a separation at the time and was most likely regrettably unaware of the difference between legal and equitable

held that the beneficial interest was owned in the proportions in which the couple had contributed. 9 A different approach was taken in Containercare (Ireland) Ltd. -v- Wycherly. 10 Carroll J. felt that the married couple in that case had put the house in joint names because both were earning and had decided that this was "the right way to do it." 11 There was no further agreement about eventual ownership. The learned judge stated that, if the property had been conveyed into the • sole name of the husband, the shares in the beneficial interest would have been determined by the respective contributions to the purchase price. However, in the present case, a decision had been made that the premises would be taken in joint names. This was evidence of an "agreement or arrangement" which was inconsistent with their contributions being appropriated to a proportionate share in the house for their respective benefits. Therefore, if no other complications had intervened, Carroll J. would have held that the parties were equally entitled to the beneficial ownership, notwithstanding the greater contribution made by the wife. It is submitted that this suggestion that the existence of a joint tenancy at law is sufficient evidence to rebut the presumption of resulting trust is unsupportable. It contradicts the whole essence of the doctrine of resulting trusts and is tantamount to because the property is in Y's name. Furthermore, Carroll J.'s distinction between the case where property is held in the sole name of the husband and where it is held jointly would lead to an absurdity. Consider the situation where the wife contributes all of the purchase money. Under Carroll J.'s analysis, if the property were held in the husband's sole name, he would get nothing, 12 but if his wife's name accompanied his on the legal title, he would, in the same circumstances, the proposition that X cannot establish a resulting trust over property in Y's name, simply

be entitled to a half share in the beneficial ownership.

The two cases discussed above indicate clearly the extent to which the individual facts of a case influence the approach of a judge to the highly subjective inquiry as to Containercare cannot be accepted, it seems that relatively slight evidence should suffice to rebut the presumption of resulting trust where the property is held in joint names. It will certainly be enough if it can be shown that a joint tenancy was created in order to benefit one spouse on the death of the other, since such a benefit would not accrue unless the beneficial ownership followed the legal title. 13 In such cases, it is not the existence of the joint tenancy, but the evidence as to the reason for its creation, which would serve to rebut the presumption of resulting trust. "Unma r r i ed " 1 4 claimants The principles discussed in relation to a claim by a wife apply equally where the claimant is not married to the legal owner. It should be remembered that there are many possible family arrangements e.g. a parent and child (or a number of unmarried brothers or sisters) living together. The most obvious situation involves a couple living together outside of marriage. Given that the Judicial Separation Act contains the prohibition on remarriage. It seems reasonable to expect that separated partners will wish to begin a new life, and any new relationship will of necessity take place outside the legal institution of marriage. Therefore, practitioners may expect to be faced more often with the special problems of cohabitation outside marriage, a situation where the familiar legislative framework which governs relations between married couples is irrelevant. In theory, the same rules (with the notable exception of the presumption of advancement) apply to unmarried couples, although some English property adjustment aspects of divorce, there remains only the the intention of the parties. Although the reasoning in

ownership. In one High Court example, P -v- Pf where the husband had made the greater

contribution but the property was held in joint names, Barrington J. decided that the beneficial ownership was held equally. Claims by a wife where the Judicial Separation Act does not apply The claim of a wife to more than half of the beneficial ownership has a greater likelihood of success and it is in the context of such claims that the relevant Irish caselaw has arisen. Since the introduction of the Judicial Separation Act, the principles established by these cases are of most practical significance in relation to a claim by either party in an extra-marital cohabitation, in which context the presumption of advancement is similarly irrelevant. In all these cases, the presumption of resulting trust operates in favour of the claimant. It is up to the legal owner to produce evidence to show that in paying more than half the purchase price, the claimant intended to make a gift to him, 7 In O'K -v- O'K* the wife's father had paid all of the purchase money for a house which was conveyed into the joint names of his daughter and her husband. Barron J. observed that the husband's reason for wanting his name on the title deeds was probably a belief that this would give him a share in the beneficial ownership. The learned judge proceeded to demonstrate the falsity of such a belief by holding that the husband had not shown that his wife had made him a gift of half the house and that therefore he was not entitled to any of the beneficial ownership in that house. Barron J. took the same approach to the determination of the ownership" of a house which was subsequently purchased, also in joint names, by the couple in that case. The wife had initially contributed three-quarters of the purchase price and Barron J.

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