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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
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
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.
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