The Gazette 1992

MARCH 1992

GAZETTE

Joint Ownership of the Family Home

(whether as joint tenants or tenants in common at law) or in the name of some third party. The overriding principle is that, provided that the appropriate intention may be presumed or otherwise established, the beneficial interest will be owned in the proportion of the contributions to the acquisition of the home. Legislation affecting married couples The Judicial Separation Act, 1989 allows the courts to make a wide variety of orders adjusting the property entitlements of the spouses in the event of a judicial separation. The factors which the Act requires the courts to consider are wide-ranging 3 and appear entirely to subsume the common law rules. 4 However, the 1989 Act applies only in the context of marital breakdown. The separate property entitlements of the spouses may become important for other reasons, most notably in the event of the death 43 or bankruptcy of either spouse. In such circumstances the common law doctrine of resulting trusts determines whether or not the equitable ownership will follow the legal title. 5 Claims by a husband where the Judicial Separation Act does not apply. If a husband pays more than half the purchase price of a house, then in theory he may claim a proportionate share based on the extent of his contribution, even if the home is in joint names. However the presumption of advancement provides a formidable obstacle to the success of such a claim. It would be necessary for the husband to introduce some evidence suggesting that his intention in making the contributions had been to gain an increased share for himself over and above the one-half suggested by the 59

Danger lurks everywhere for the practitioner who must wander in the minefield of the beneficial ownership of the family home. The two recent Supreme Court decisions on the area 1 raise the suspicion that even those who originally set the mines have forgotten where it is safe to walk. In the hope of providing some modest assistance, this article aims at a controlled explosion of just one deeply buried misconception. It appears to be commonly assumed that "putting the home into joint names" is an infallible method of guaranteeing equal beneficial ownership. This is a dangerous over- simplification since, even if the property is held in joint names at law, the doctrine of resulting trusts may still operate to make the beneficial ownership of the property depend on the respective financial contributions to the acquisition of the home. The problem is most significant in relation to the increasing number of couples living together outside marriage, since the Judicial Separation Act will normally (but not invariably) provide a remedy for a married claimant. The purchase money resulting trust Equity will impose a resulting trust in favour of a person who contributes to the purchase price of property with the intention of gaining a share in the ownership. The extent of the share will be proportionate to the fraction of the purchase price they have provided. Thus a wife who contributes 2 one- third of the cost of a family home which is held in the sole name of her husband will normally be entitled to a one-third share in the equitable ownership.

f ^ ^ 4 j

by John Mee B.GL., LL .M. (N.U .I.), LL .M. (Osgoode), B.L., Lecturer in Property and Equity Law, University College, Cork. contribution and the appropriate intention. In a family situation, realistically neither party is likely to have had any particular intention as regards the separate property entitlements. Therefore of crucial importance are the presumptions that the law makes in the absence of evidence as to the intentions of the parties. The "presumption of resulting trust" allows the courts to assume, unless there is evidence to rebut the presumption, that a person making a contribution did have the necessary intention to generate a resulting trust. However, if a husband contributes to the acquisition of property in the name of his wife, the anachronistic "presumption of advancement" applies. This requires the courts to assume, again in the absence of rebutting evidence, that he intended to make a gift to his wife. The presumption, which historically was based on the perceived duty of a husband to provide for his dependent wife, does not apply to

contributions from a wife to a husband, nor does it apply in relation to unmarried couples.

The key point for present purposes is that the resulting trust doctrine applies irrespective of whether the property is held in the sole name of one party, or in both their names

It should be noted that two elements are required - the making of a