The Gazette 1992

GAZETTE

MARCH 1992

European Lawyers Union Annual Conference

8. Unreported High Court, 6th November, 1982. 9. Sometimes the evidence will show that equal ownership was intended. In G.K. -v- E.K., (unreported High Court, 6th November, 1985), the wife had made a much greater contribution to the purchase money than her husband. However O'Hanlon J. noted (at p.4 of his judgement) that "the wife very fairly said in the course of her evidence that the parties intended the house to be in joint ownership with equal rights to both of them. . . . " This evidence allowed the learned judge to hold that there should be equal beneficial ownership, rather than a resulting trust in favour of the wife based on her greater contribution. 10. (19821 I.R. 153. 11. Ibid, 147. 12. Carroll J. made it clear that no presumption of advancement applied in favour of a husband. (Ibid at 152). 13. See, for example, J.C. -v- J.H.C., unreported High Court, 4th August, 1982, Keane J. 14. The parties could quite possibly be married, but not to each other. 15. See e.g. Oliver, "The Mistress in Law", [19781 C.L.P. 81. 16. See Crisp -v- Mullings (1975) 239 E.G. 119; Lawrence -v- McFarlane The Times, 19 May 1976; Young -v- Young [1984] Fam. Law 21 and Walker -v- Hall [1984] Fam. Law. 126. 17. [1984] Fam. Law 126. 18. Although the point under discussion does not seem to have been litigated yet, there have been a number of Irish cases applying

the rules concerning resulting trusts to unmarried couples. See e.g. McGill -v- Snodgrass [1979] I.R. 283 (where the woman's claim was unsuccessful) and Power -v- Conroy [1980] I.R.L.M. 31 (where the woman did succeed).

19. See e.g. Goodman -v- Gallant [1986] 1 All E.R. 311. A theoretical argument could be raised to the effect that the English practice would not be entirely effective in Ireland, given our highly idiosyncratic theoretical approach to the whole area of trusts of the family home. Briefly, our approach allows matters subsequent to the date of purchase (e.g. the making of mortgage repayments) to govern, in a rather crude mathematical fashion, the beneficial ownership, whereas the more complex English analysis takes great pains to relate such matters to a common intention existing at the time of the purchase. (See e.g. Grant -v- Edwards [1986] 2 All E.R. 426). The point is that an express declaration in the conveyance would reveal the intention as to the equitable ownership at the time of the purchase (the crucial time in England), whereas in Ireland the intention of the parties at the time of a subsequent contribution may instead be determinative. 20. It seems that if the couple consulted the solicitor together and expressed their desire to share equally in the ownership of the home, this expression of intention could amount to sufficient evidence to rebut the presumption of resulting trust which would arise in favour of the partner who made the larger contribution.

Biarritz - June 1992

T he U A E (European Lawyers Un i o n) is holding its next Annual Congress in the beautiful town o f Biarritz f r om the llth/14th June, 1992. T he theme o f the conference will be a Progress Report on the developments towards a Single Market 6 months before the Single Market comes into being on the 1 January, 1993. An y o ne interested in information concerning the conference should contact: GeraldMoloney, 27/29 Washington Street, Co r k.

Ph o ne 021 275261; Fax 021 271586

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