The Gazette 1992

GAZETTE

MARCH 1992

Joint Ownership of the

Family Home

Danger lurks everywhere for the

practitioner who must wander in the

minefield of the beneficial ownership

of the family home. The two recent

Supreme Court decisions on the

area

raise the suspicion that even

those who originally set the mines

have forgotten where it is safe to

walk. In the hope of providing some

modest assistance, this article aims at

a controlled explosion of just one

deeply buried misconception.

It appears to be commonly assumed

that "putting the home into joint

names" is an infallible method of

guaranteeing equal beneficial

ownership. This is a dangerous over-

simplification since, even if the

property is held in joint names at

law, the doctrine of resulting trusts

may still operate to make the

beneficial ownership of the property

depend on the respective financial

contributions to the acquisition of

the home. The problem is most

significant in relation to the

increasing number of couples living

together outside marriage, since the

Judicial Separation Act will normally

(but not invariably) provide a remedy

for a married claimant.

The purchase money resulting trust

Equity will impose a resulting trust

in favour of a person who

contributes to the purchase price of

property with the intention of

gaining a share in the ownership.

The extent of the share will be

proportionate to the fraction of the

purchase price they have provided.

Thus a wife who contributes

one-

third of the cost of a family home

which is held in the sole name of

her husband will normally be

entitled to a one-third share in the

equitable ownership.

It should be noted that two elements

are required - the making of a

by John Mee

B.GL.

, LL .M.

(N.U

.I.),

LL .M. (Osgoode), B.L., Lecturer

in Property and Equity Law,

University College, Cork.

contribution

and

the appropriate

intention. In a family situation,

realistically neither party is likely to

have had any particular intention as

regards the separate property

entitlements. Therefore of crucial

importance are the presumptions

that the law makes in the absence of

evidence as to the intentions of the

parties. The "presumption of

resulting trust" allows the courts to

assume, unless there is evidence to

rebut the presumption, that a person

making a contribution did have the

necessary intention to generate a

resulting trust.

However, if a husband contributes to

the acquisition of property in the

name of his wife, the anachronistic

"presumption of advancement"

applies. This requires the courts to

assume, again in the absence of

rebutting evidence, that he intended

to make a gift to his wife. The

presumption, which historically was

based on the perceived duty of a

husband to provide for his

dependent wife, does not apply to

contributions from a wife to a

husband, nor does it apply in

relation to unmarried couples.

The key point for present purposes is

that the resulting trust doctrine

applies irrespective of whether the

property is held in the sole name of

one party, or in both their names

(whether as joint tenants or tenants

in common at law) or in the name

of some third party. The overriding

principle is that, provided that the

appropriate intention may be

presumed or otherwise established,

the beneficial interest will be owned

in the proportion of the

contributions to the acquisition of

the home.

Legislation affecting married couples

The Judicial Separation Act, 1989

allows the courts to make a wide

variety of orders adjusting the

property entitlements of the

spouses in the event of a judicial

separation. The factors which the

Act requires the courts to consider

are wide-ranging

and appear entirely

to subsume the common law rules.

However, the 1989 Act applies only

in the context of marital breakdown.

The separate property entitlements

of the spouses may become

important for other reasons, most

notably in the event of the death

or bankruptcy of either spouse. In

such circumstances the common law

doctrine of resulting trusts

determines whether or not the

equitable ownership will follow the

legal title.

Claims by a husband where the

Judicial Separation Act does not

apply.

If a husband pays more than half

the purchase price of a house, then

in theory he may claim a

proportionate share based on the

extent of his contribution, even if

the home is in joint names. However

the presumption of advancement

provides a formidable obstacle to the

success of such a claim. It would be

necessary for the husband to

introduce some evidence suggesting

that his intention in making the

contributions had been to gain an

increased share for himself over and

above the one-half suggested by the