The Gazette 1992

GAZETTE

MARCH 1992

declaration unless fraud or mistake at the time of the conveyance can be proven. 19 Strangely, it seems that the normal Irish practice does not involve this elementary precaution, thus leading to the problems discussed in this article. scenario in which the assumption by a solicitor that joint ownership at law is sufficient to guarantee equal beneficial ownership could lead to an action for professional negligence. Consider a situation where a young woman is about to move in with her boyfriend. On the urging of her parents she goes to see her family solicitor to find out how to safeguard her property rights. The solicitor advises the woman that, irrespective of financial contributions, she will be entitled to equal ownership if the property is conveyed into joint names (without mentioning the possibility of an relationship subsequently breaks up and she finds herself with nothing to show for a number of years of unpaid work in the home, she could be forgiven for looking for compensation from the solicitor who misled her. 20 Conclusion In a case arising outside the context of marital break-up, there is a possibility that one of the spouses (particularly a wife), who has paid more than half of the purchase money, may establish a resulting trust based on the extent of her contribution, despite the property being held in joint names. The problem is more acute in relation to unmarried claimants of either sex, since there has been no legislative intervention. Negligence It is not difficult to construct a express declaration as to the beneficial interests). If her Where a conveyance is intended to produce joint ownership, there seems to be no reason for the failure of Irish conveyancers to include the standard English device of an express declaration as to the equitable ownership. It should be remembered that until comparatively recently it was standard practice to convey the

commentators have identified an unspoken judicial bias against the claims of an unmarried woman. 15 Of course, some couples may have avoided marriage to reduce their commitment to the relationship and this may have certain implications for their likely intentions as to the sharing of property. It may be that in such cases joint ownership at law is explicable by reference to the dictates of the Building Society granting a mortgage, rather than to any real desire to share the ownership regardless of the extent of the respective contributions. In a number of English cases involving extra-marital cohabitation, the courts have imposed a resulting ownership at law. 16 In Walker -v- HallJ 1 for example, a couple who were not married to each other purchased a home in joint names. Three-quarters of the price was provided by Mr. Hall and one- quarter by Mrs. Walker. Dillon L.J. (and his colleagues in the English Court of Appeal) felt that it was not open to the court to hold that the property belonged to the couple in equal shares. In the absence of specific evidence as to their intention, their shares would be determined by their respective contributions to the purchase price. this country also is particularly vulnerable, 18 given that she might (not unreasonably) assume that having her name on the title would protect her joint ownership. It should also be noted that it is most unlikely that any legislative intervention in this area will deal with the problems of unmarried claimants. trust based on the financial contributions despite the joint It would appear that a woman living in an extra-marital relationship in In England it is normal practice for a conveyance into joint names to include a simple declaration that the property is to be held equally in law and in equity. It has been held in a number of English cases that the courts will not look beyond such a An express declaration as to beneficial ownership

family home into the sole name of the husband, with disastrous consequences for wives. Perhaps it should also be remembered that a practice may be negligent, even though it is standard in the profession. • References 1. L. -v- L. and E.N. -v- R.N. Judgement in both cases was delivered on December 5, 1991. 2. The Irish Courts have extended the notion of a "contribution" to encompass direct payments towards mortgage instalments (see C. -v- C. [1976] I.R. 252) and "indirect contributions" towards the repayment of a mortgage made by a working claimant who pays other household expenses (see Mc.C -v- McC. [1986] I.L.R.M. 1). However, in the recent decision in L. -v- L., the Supreme Court refused to recognise work in the home as sufficient to generate a beneficial interest in the home. marriage and the conduct of the spouses, as well as the contributions which each spouse has made to the welfare of the family, including "any contribution by looking after the home or caring for the family." 4. Under the Act, the Court does not begin with a clean sheet but operates its assessment of the appropriate adjustments on the basis of the pre-existing property entitlements of the spouses. Therefore it might seem worthwhile for a spouse to establish, prior to the adjustment process, that under the common law rules she was already entitled to a share in the home. However, it seems that this exercise would be pointless since the statutory criteria are easily broad enough to encompass the narrow common law concept of a contribution to the purchase price. On the other hand, the proposed legislation providing for automatic equal ownership of the family home would operate quite independently of the considerations listed 3. The relevant factors are listed in s.20 and include such matters as the duration of the 4a. See E.N. -v- R.N., note 1, above. 5. If a new legislative regime of automatic joint ownership of the family home were to be created, then the significance of the common law rules in relation to married couples would be further diminished. However, it is most unlikely that anything approaching full-blown community of property will be introduced, so that other items of family property (e.g. a car or a second house) would not be covered. 6. Unreported High Court, 12th March, 1980. Contrast the unusual case of R.S. -v- M.S., unreported Supreme Court, 24 October, 1985. 7. In the context of a bankruptcy, it could, of course, be in the husband's interest to show that his wife held more than half of the beneficial interest. In such circumstances the courts should consider his evidence with some caution. See Midland Bank Lid. -v- Dobson [1986] 1 F.L.R. 171. 61 in the Act and so would be of real significance in the event of a judicial separation.