The Gazette 1985

APRIL 1985

GAZETTE

Accordingly, it is arguable that sub-section 1 is not intended to take in the conventional presumption of advancement. b) 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. 3 The recent Supreme Court decision of McC -v- McC 4 , 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 5 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 6 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. 7 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." 8 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. c) 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.

d) 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

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