O'D v O'D

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 18 November 1983
• Neutral Citation: 1984 WJSC-HC 2595
• Docket Number: No. 20 C.A./1983
• Court: High Court
• Date: 18 November 1983

O ' D. v O'D.

MATRIMONIAL

O'D

.v.

O'D

1984 WJSC-HC 2595

No. 20 C.A./1983

THE HIGH COURT

Subject Headings:

HUSBAND & WIFE: property

REAL PROPERTY: partition

1 Judgment of Mr. Justice Murphy delivered the 18th day of November, 1983

2 This is an Appeal from the decision of the Learned President of the Circuit Court given on the 18th July, 1983.

3 The Plaintiff and the Defendant were married on the 16th March, 1978 and there was one child of the marriage, namely R who was born on the 14th October, 1980.

4 The matrimonial home was situated at ___________ and it is common case that the Plaintiff and the Defendant are each beneficially entitled to a moiety of the said premises.

5 Since July 1982 - following an application by the Defendant for a Barring Order which was unsuccessful - the Plaintiff has left the matrimonial home and not returned thereto.

6 The Plaintiff is in some financial difficulty as he lost the executive position which he previously held due to the liquidation of his employer. He has recently started a new enterprise in conjunction with two other persons and whilst it is not yet established how successful or otherwise this business will be he has been drawing a sum of £137 per week by way of emoluments. In fact this fugure may be misleading as, due to the fact that the Plaintiff had been out of work for some time, he is subject to little or no tax on that income at the present time. Currently he is paying to his wife maintenance at the rate of £55 per week. £40 per week to his father in repayment of a loan to finance the new enterprise and there is due to the Building Society, who advanced money in connection with the purchase of the premises in Portmarnock, a weekly payment of £52. The payments to the Building Society are not currently being met. Obviously some adjustments can be made in the present arrangement. It would seem that the Plaintiff's father might be prepared to postpone the repayment of the loan made by him and perhaps the Building Society loan could be spread over a longer period with a consequent reduction in the amount of the weekly payments. However whatever arrangements may be made it is clear that the present income of the Plaintiff is inadequate to meet a reasonable claim for maintenance: the repayment of the mortgage and the repayment of the family loan as well as keeping the Defendant and himself in the basic necessities of life. Perhaps surprisingly the Defendant is confident that the Plaintiff will in fact succeed in his present venture and that further monies will become available as a result. Obviously it would be impossible to rely on such a forecast as a basis on which to make a present decision. Indeed one would have to bear in mind the possibility that a more pessimistic view would be justified.

7 However the foregoing matters are not really in question at the present time except as a background to the Plaintiff's claim that the matrimonial hone should be sold and its true value - there was evidence to the effect that it is worth some £43,000 - obtained and out of that sum the Building Society Mortgage repaid and the balance invested in a more modest home for the benefit of the wife during her life and the child at least during its dependency. As the Defendant is not agreeable to that course the Plaintiff instituted these proceedings claiming a sale of the family home in lieu of partition pursuant to the Partition Act 1868 to 1876. The learned President did not order a sale of the premises nor did he dispense with the consent of the Defendant in the event of a sale taking place. Instead he made an order of partition and adjourned the balance of the proceedings with liberty to re-enter.

8 In the Appeal it was argued on behalf of the Plaintiff that as a joint tenant he was entitled as of right to a decree for partition or that in any event it was a suit where, in the words of section 4 of the Partition Act 1868 "a decree for partition might have been made". That being so, the argument ran, as the Plaintiff was himself entitled to an interest in the property to the extent of one moiety that again he was entitled as of right to the sale of the property unless the Court saw good reason to the contrary. In support of those propositions the cases cited in Carton's Real Property Statutes second edition at page 745 were relied upon. These included Pitt and Jones 5 APP 661; Drinkwater and Ratcliffe 20 EQ. 530; Pemberton and Barnes 6 CH. 693 re Whitwell 19 L.R.I.R. 45 and re Langdale I.R. 5 EQ. 572.

9 This line of argument raises at once the nature and origins of the right to partition itself. There is no doubt that joint tenants and tenants in common did not have the right at common law to compel a partition. The position appears to have been otherwise in relation to "co-parceners" as their co-ownership was cast on them by the act of the law, and not by their own agreement, it was thought right that the perverseness of one should not prevent the other from obtaining a more beneficial method of enjoying the property" (see Williams Real Property 23rd Edition page 243). The right of the joint tenant to compel partition was conferred by a statute in 1542 entitled "an Act for joint tenants" (33 Henry VIII c. 10). It may be significant to note that the final section to that Act contains a proviso which, translated into contemporary english reads as follows:-

"No such partition, nor severance hereafter to be made by a force of this Act, be nor shall be prejudicial or hurtful to any person or persons their heirs or successors, other than such which be parties or privy unto the said partition, their executors or assigns".

10 With only minor amendments the Act of Henry VIII governed the law relating to partition...