The Gazette 1984

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 78 No. 3 April I9S4 With All My Worldly Goods . . .? T HE recent judgment of the Supreme Court in in the case of McC. -v- McC. confirming

such formality has given rise to considerable difficulties on subsequent sales of the landlord's interest. The initiators, drafters and legislators of the proposed law should consider how appropriate it is that arrangements which may easily be common- place among the property owning classes should be imposed without serious consideration of the practical difficulties on those living in rented accommodation. It is already clear that there are considerable difficulties facing the implementation of the proposed legislation — not least that of consti- tutionality, if it were to come into effect immediately and not in futuro. Other obvious difficulties relate to the effect of such legislation on existing arrangements, particularly those relating to marriages which have, either formally or informally, come to an end, the question of property acquired by gift or inheritance and the situation where property is already in co-ownership when one of the co- owners marries. It may be remarked that, in Ireland, the question of ownership of the Family Home has tended to become an issue only when the marriage has run into difficulties. Since, therefore, the trend is already clear in the case of owner-occupied premises and there are clearly considerable difficulties involved in imposing the strait-jacket of presumed co- ownership on other categories, would it not be sufficient to implement the proposals made by the Law Reform Commission in their First Report on Family Law, which proposed that our Courts should have regard to the contributions made by a spouse, whether such contributions be financial, or by looking after the home, or caring for the family. It would surely be generally agreed that, where a spouse does not go out to work or generate any income but cares for the family and looks after the family home, that contribution is acknowledged by the parties by tacit agreement as being that party's contribution to the maintenance of the Family Home — a contribution which must be at least as valuable as a simple financial contribution to purchase price or mortgage repayments. •

that our Courts will only have regard to contri- butions, either direct or indirect, by a wife towards the purchase price or the discharge of mortgage instalments in relation to a Family Home when considering whether she has a right to claim an interest in such home, has already resulted in further pressure on the Government to expedite the introduction of legislation conferring on each spouse an equal share in the Family Home. A comparative study of matrimonial property regimes carried out for the Law Society by Mr. Patrick Horgan of the Law Faculty of University College Cork has revealed some interesting facts. The most significant of these is that the doctrine proposed to be introduced here appears to be more radical than those operating in what might be thought to be more "progressive" jurisdictions, such as California or New Zealand. In a number of jurisdictions it appears that the legislation governing matrimonial property is primarily intended to lay down guidelines for the distribution of such property upon a dissolution of marriage and does not focus on the parties' entitlement during the marriage. That shared ownership is socially desirable is unarguable — indeed, the majority of owner- occupied houses which have been purchased in recent years have been bought in the joint names of the spouses. Here at least the Government may be seen to be following, rather than forming, public opinion. It is not, however, necessarily true that legislation compelling or creating co-ownership is either necessary or desirable. From the point of view of the practising lawyer, the use of the same definition of "Family Home" as in the Family Home Protection Act will inevitably give rise to the same sort of difficulties in relation to tenanted property as arose under that Act. The cases of H & L -v- S and Waipolc -v- Jay highlighted the absence of formality which frequently attends the creation of short-term residential lettings and almost invariably attends either the surrender or other termination of such tenancies. The absence of