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Property Law Family Property Notes

BCL Law Notes > Property Law/ Land Law Notes

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Disputes - close interpersonal relationships mean there will probably be one
Property in context of these disputes between personal relationships
What's a family, what's a home, is a family home different to a shared home etc
What happens to the property in a divorce or judicial separation.
Say a wife contributes by way of rearing children or being a stay at home mother, the house is in the husbands name, and then he uses the house to secure a mortgage and defaults -
does the wife have an equitable interest in the home by way of the work she has done there? Is it important that they are married? If she does have that equitable interest, where does it come in, in relation to the default? What about notice etc…or same sex marriage?
Nature of the home? What if the husband obtained consent? What if wife made contributions towards the mortgage payments in monetary terms?

The Constitutional Context
➢Article 41.1:
The family is the natural and fundamental unit of society
Inalienable and imprescriptible rights
Necessary basis of social order
Indispensable to the welfare of the state
Protected accordingly
Protect is against attack
Guard with special care
Case law states that - The Family, is a family based on marriage.
Marriage act 2015 - not heterosexual marriage only.
Civil partnerships?


➢ Article 8.1
- Everyone has the right to protect his home and his correspondence
➢ 8.2
- No interference by a public authority…
Very factual approach

Gillham?...A rent in property could constitute a home for the purposes of the home in the ECHR.

Buckley v UKFactual test as to whether or not something is a home, depending on existence of consistent and continuous links.

➢ Article 14
- The enjoyment of the rights and freedoms…shall be secured without discriminations on any grounds…lists a lot of specific grounds and then says, 'or any other status'. •

However, the effectiveness could be reduced as article 8 has exceptions which fall under what is necessary in a democratic state, however the ECHR tends to give 14 a narrow interpretation as it would reduce effectiveness of aim of article 8.
Not part of our law
If there is a conflict, the Irish constitution prevails.

The Matrimonial Home: Equity Based on Contributions

A spouse who has contributed to the purchase price
- Equitable interest.
Early-mid 20th century, there were only heterosexual couples. Home held in name of the husband
Husband more likely to be engaged in employment outside the home
Domestic woman.

The deserted wife's equity: the law used to recongise certain rights of the wife: accommodation,
shelter or roof over her head, and a corllarly of this was that a husband had a duty to ensure that she had accommodation.

This equitable interest allowed her to take legal action if the husband jeopardised or threatened her right of accommodation
- The right was a PERSONAL right and not a proprietary interest
- This means it cannot be enforced against a third party.
- Property rights can

Other wives rights:

1. Direct contributions

2. Indirect contributions


Spouses A and B - B is the husband, and is the main earner and is gpign to pay for most of the house. If A contributes directly to the purchase of the house - deposit, lump sum,
mortgage…any monetary direct way.
The other spouse holds the title on trust as tenants in common in equity for BOTH of them
The shares is proportionate to her contributions - her equitable share will be proportionate to her monetary contribution.
Not many restrictions on how her direct contribution made•

Resulting trust in proportion to that amount

A entitled to equitable share in ownership as a result of the contribution she has made,
which is why it is called a resulting trust

Family house purchased in husbands name. wife had earnings from a job. Paid into family account,
which the mortgage payments were extracted from. Additionally, the husband bought a pub in the house and the wife majorly contributed in working for the pub, without the reception of any paymentUnpaid labour and monetary contribution gives the spouse a resulting trust.


What if the wife made indirect contributions? The problem is that, you need to be able to establish a link between the payment the wife has made, and the PURCHASE of the hose
This is difficult to show if it is indirect
Provided you do show that there's been a monetary contribution…do you ned to show an agreement to an interest in return for the contribution?
Or is it an implied interest?

Express agreement:

Not a presumed resulting trust
An express trust.

Generally, an express agreement will be to the detriment of the wife because generally people do not sit down and agree on these specifications.
Unrealistic to assume there'd be an express agreement
So did the courts take the approach to imply a trust or take an express trust?

No evidence of express agreement necessary.
Gissing v Gissing
Lord Reid - dictumNo express evidence of an agreement necessary in order for the spouse to have an equitable interest.

Wife contributed money to a joint bank account, but no money from this particular account was used to pay the mortgage.
Finlay JEven though this exact account was not used, the wife was entitled to a share of equity
Indirect contribution as it allowed the husband to use a different account to pay off the mortgage
Alleviated the husband of other fees he would have paid…household etc.

Heavey v Heavey
KennyIt would be unrealistic to look for an express agreement
Where both have made contributions, indirect or direct, there is no need

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