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Trusts Of The Family Home Notes

BCL Law Notes > Irish Trusts Notes

This is an extract of our Trusts Of The Family Home document, which we sell as part of our Irish Trusts Notes collection written by the top tier of University College Cork students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Irish Trusts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

TRUSTS OF THE FAMILY HOME: RESULTING TRUSTS
INTRODUCTION:
 Originally, the rule was Dyer v. Dyer, "the beneficial interest of a legal estate results to the man who advances the purchase money of that estate". Thus, as Hanbury and
Martin noted, the beneficial interest of the property is constructed under a presumed resulting trust.
 Historically, there had been no specific set of rules surrounding the assessment of property rights of cohabitees- Pettitt v. Pettitt, recognised the need for legislation in this area in the 1970's. Where using the orthodox purchase money resulting trust approach, they rejected to devise resolution principles in the court. This brings us to the legislation in the area.
 With the recent advancements in legislation Family Law Act 1995 & Family Law
(Divorce) Act 1996, the courts have significant discretion when dealing with property and cohabitees. While these Act refer to the married cohabitants, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 also brings this into play for those unmarried cohabitants whom are considered to be qualified.
 Under these Acts, the court can adjust property entitlements, however, they can only do so where a cohabitant is qualified and financially dependant on foot of the relationship.

WHERE EQUITY COMES INTO THE MIX:
 There are many equitable rules which are still applicable in certain family disputes:
1) Disputes involving married couples outside the realm of judicial separation/divorce.
a. Oman v. Oman [2019]; where a dispute arises with the creditor of one of the spouses.
b. Relationship ended on the death of one of the spouses and there is a dispute concerning what property constitutes the deceased's estate,
EN v. RN [1992].
2) Disputes arising outside the realm of marital breakdown or where the cohabitant is not qualified under the act and is not financially dependent under the Act also.
3) Disputes involving other family members. TRUSTS OF THE FAMILY HOME: RESULTING TRUSTS
- The Irish extended resulting trust approach is a simple contributor friendly approach whereby, the courts look to direct and indirect contributions towards the purchase price, and deal with it on the basis of you almost get what you put in.
- Biehler notes however that the difficulty which arises here under the Irish approach centre around the, "assessing [of] the worth or suitability of the various types of contributions which can be made"

Direct Contributions:
 This is where the direct contributions by a party, clearly represents their beneficial interest, by the means of a presumed resulting trust.
 C v. C; The spouses purchased a family home in the husband's name although the wife made a direct contribution to the purchase price by paying the deposit and some mortgage repayments - after the marriage the wife claimed that she was entitled to a 50% interest in the property.
o Held that, when a wife makes payments towards the purchase price of a house in the sole name of the husband then the husband becomes a trustee for her of a share in the house proportionate to the size of her contributions. Irrespective as to who's name the property is in.
o Quite a generous application of the doctrine of resulting trust in relation to the contribution to mortgages which is a payment to a third party and not to the purchase price directly and has been affirmed in both W v. W, where the beneficial interest is proportionate to the contributions "more flexible contributor approach" here so to speak by Finlay P. & McC v. McC.

Indirect Contributions:
 These types of contributions are where the ambiguity that Biehler was speaking about lies.
 McC v. McC; tricky situation here where you didn't contribute to the mortgage, but you did pay for other family expenses, while the mortgage was being paid.
o Uncertainty here some cases said this type of payment made by the contributory should get a proportionate share, others have disagreed and said that there would need to be some element of a prior agreement by the parties to create an estoppel.

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