The Gazette 1992

GAZETTE

MARCH 1992

commentators have identified an

unspoken judicial bias against the

claims of an unmarried woman.

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

trust based on the financial

contributions despite the joint

ownership at law.

Walker

-v-

HallJ

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.

It would appear that a woman living

in an extra-marital relationship in

this country also is particularly

vulnerable,

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.

An express declaration as to

beneficial ownership

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

declaration unless fraud or mistake

at the time of the conveyance can be

proven.

Strangely, it seems that the

normal Irish practice does not

involve this elementary precaution,

thus leading to the problems

discussed in this article.

Negligence

It is not difficult to construct a

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

express declaration as to the

beneficial interests). If her

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.

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.

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

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

-v-

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

-v-

L.,

the Supreme Court

refused to recognise work in the home as

sufficient to generate a beneficial interest

in the home.

3. The relevant factors are listed in s.20 and

include such matters as the duration of the

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

in the Act and so would be of real

significance in the event of a judicial

separation.

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.