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

ownership. In one High Court

example,

-v-

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,

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.

held that the beneficial interest was

owned in the proportions in which

the couple had contributed.

A different approach was taken in

Containercare (Ireland) Ltd.

-v-

Wycherly.

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."

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

the proposition that X cannot

establish a resulting trust over

property in Y's name, simply

because the property

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,

but if his wife's name

accompanied his on the legal title, he

would, in the same circumstances,

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

the intention of the parties.

Although the reasoning in

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.

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

property adjustment aspects of

divorce, there remains only 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