The Gazette 1985

GAZETTE

APRIL 1985

Accordingly, it is arguable that sub-section 1 is not

intended to take in the conventional presumption of

advancement.

The Resulting or Constructive Trust applied to

Matrimonial Property Disputes

On a close reading of section 5(1), this seems precisely

the sort of situation for which it was intended. The term

"rules of law" would then be construed as the equitable

principles of the resulting or constructive trust, which the

courts in recent years have grown to impose or impute in

favour of non-owning spouses who have made significant

contributions to household expenditure broadly referable

to the acquisition of property.

The recent Supreme Court decision of

McC

-v-

McC

though confined on its facts to a classic resulting trust,

since the claiming spouse had contributed only to the

purchase of household furniture and not the house itself,

crystallises the approach taken by the Irish judiciary from

the mid-1970s to problems in this area. Outside the

strictly defined province of marital relationships the

attitude of the courts has been less uniform.

Hence, in

McGill

-v-

Snodgrass

Gannon J. declined

outright to impose or impute a constructive trust in a case

where two people were living together in a married state

and simply sharing expenses. On the other hand, in

Power

-v-

Conroy

McWilliam J. imposed a constructive trust

where property was purchased in the man's name only by

joint contributions from himself and his mistress.

Indisputably these two cases can be distinguished on their

facts, but it is nonetheless difficult to extract a coherent

principle respecting the proprietary rights of unmarried

cohabitants over property held in the name of one of them

alone.

Superficially, section 5 seems apposite. That section,

however, only concerns couples who had entered into an

agreement to marry which was terminated. In this context

it is significant that when the Family Law Bill was passing

through the Dáil objections were raised that section 5

would endow engaged couples with a status that did not

inhere in couples who had lived together for a long time,

and perhaps had children, and could, therefore, regard

themselves as married to each other in all but name.

To these criticisms the then Minister of State to the

Department of Justice replied: "In a common law

marriage situation there are normal procedures to deal

with the proprietary rights of individuals . . . section 5

does not recognise two people living together outside of

the marriage contract as we know it."

It seems clear, therefore, that section 5 of the Family

Law Act 1981 is confined in its application to engaged

couples only. However, on account of the trend in the

recent "matrimonial" constructive trust cases, culmina-

ting in

McC

-v-

McC,

it is arguable that section 5, in this

particular context, is quite unnecessary.

Apart from the above equitable principles it is

submitted that the phrase "rules of law" must also take in

rules and laws enunciated by statute. Three statutes

spring to mind.

The Married Woman's Status Act 1957

Section 12 of this is directly invoked by section 5(2) of

the Family Law Act 1981. The other sections of the 1957

Act, where relevant, seem to be subsumable under the

general head of the constructive trust, above discussed.

The Family Home Protection Act 1976

Although section 10 of the Family Law Act 1981

manifestly amended portion of the Family Home

Protection Act 1976, certain incongruous consequences

would inevitably arise were the phrase "the rules of law

relating to the rights of spouses" deemed to embrace all

the provisions of this latter statute. The following are

some:

(i) A jettisoned lover could withhold consent to any

disposition of property, in which he/she used to

cohabit, up to three years from the termination of

the relationship, provided it had comprehended an

agreement to marry, regardless of whether in the

meantime one or other of the parties had entered

into another relationship, or, in fact, had married.

(ii) A current cohabitant would be unable to withhold

consent, because section 5 of the 1981 Act seems

only to countenance situations where a relationship

has been terminated.

(iii) Applying section 5(1) of the 1981 Act to its

numerical counterpart in the 1976 Act, it would

seem that where a property-owning cohabitant, in a

relationship comprehending an agreement to

marry, "is engaging in such conduct as may lead to

the loss of any interest" in the property jointly

occupied by the cohabitants, the non-owning,

cohabitant, after the parting of the ways, could seek

from the court "such order as it considers proper",

which might include an order transferring

ownership. However, it is submitted that so drastic

an order would never be made, since the only

"interest" in the property which a non-owning

cohabitant might be expected to have would be

in the nature of an implied or imputed constructive

trust, where the rules of equity apply.

The second limb of section 5(1) of the Family Home

Protection Act 1976 — namely, where the owning party

"is engaging in such conduct as . . . may render it, the

family home, unsuitable for habitation as a family home

with the intention of depriving the applicant spouse or a

dependent child of the family of his residence in the family

home" — would be unlikely to arise as it is improbable

that a non-owning cohabitant, after the relationship had

ended, would be concerned to return.

There may be other consequences, equally disasterous.

However, there are also certain principles of definition, in

both the Family Home Protection Act 1976 and the

Family Law Act 1981, which militate against absurdity.

(i) The primary definition of a "family home" in

section 2( 1) of the 1976 Act is a "dwelling in which a

married couple ordinarily reside." Even if we allow

for the expansion of the phrase "married couple" to

take in engaged couples who are cohabiting, the

basic requirement of ordinary residence still

remains. Since section 5 of the 1981 Act is stated to

apply only "where an agreement to marry is

terminated" and it is highly improbable that parties

to a broken engagement would remain living in the

same house, these two basic requirements can

hardly ever coincide.

A secondary definition of "family home" is a

170