M (B) v M (A)
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 03 April 2003 |
| Neutral Citation | [2003] IEHC 170 |
| Docket Number | Record No. 240CA/2002 |
| Court | High Court |
| Date | 03 April 2003 |
[2003] IEHC 170
THE HIGH COURT
CIRCUIT COURT APPEAL
Between:
And
Citations:
PARTITION ACT 1868 S3
PARTITION ACT 1868 S4
PARTITION ACT 1876
FAMILY HOME PROTECTION ACT 1976 S4
C (J) V C (JH) UNREP 4.8.1982
DYER V DYER 1788 2 COX EQ 92
POLICY NO 6402 OF THE SCOTTISH EQUITABLE LIFE ASSURANCE SOCIETY 1902 1 CH 282
SLATTERY, RE 1917 2 IR 278
DELANEY EQUITY & THE LAW OF TRUSTS 2ED 156
F (R) V F (M) 1995 2 ILRM 572
DRINKWATER V RATCLIFFE 1875 LR 20 EQ 533
FLEMING V CROUCH 1884 WN 111
PEMBERTON V BARNES 1871 LR 6 CH APP 685
FAMILY HOME PROTECTION ACT 1976 S2(1)
L (A) V L (J) UNREP FINLAY 27.2.1984 1984/4/1392
O'D V O'D UNREP MURPHY 18.11.1983 1984/8/2595
Synopsis:
PARTITION
Family Law
Sale in lieu of partition - Family home - Court's discretion to refuse order for sale if good reason to contrary - Consent of spouse to sale of family home not forthcoming - Appeal from order of Circuit Court - Whether court should order sale of family home and dispense with consent of non-agreeing spouse - Partition Act, 1868 sections 3 and 4 - Family Home Protection Act, 1976 (2002/240Ca - Peart J - 3/4/2003)
M (B) v M (A)
section 4 of the Partition Act 1868 provides that in “a suit for partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if the party or parties interested…to the extent of one moiety or upwards in the property to which the suit relates, request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between…the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly..” The plaintiff sought an order for sale of premises occupied by the defendant, her former husband, pursuant to sections 3 and 4 of the Partition Act 1868. The Circuit Court made an order that the premises be sold and that the proceeds be divided as to 40% to the defendant and 60% to the plaintiff. That order was appealed to the High Court by way of re-hearing. The premises in question had previously been occupied by both parties since 1966 after they moved in with the plaintiff’s parents until the plaintiff deserted the family in 1989. The property had been purchased from Dublin Corporation by the plaintiff’s parents who up to then had been its tenants so as to obtain a 30% discount on the price, but the defendant thereafter discharged the repayments under the transfer order and under subsequent loans for its improvement. The plaintiff’s father subsequently left the premises to the plaintiff and defendant jointly in his will. The defendant sought a declaration that he was entitled to the total beneficial interest in the property on the basis that the plaintiff had provided no consideration for it and on the fact of her desertion. He also pleaded that the court should exercise its discretion in refusing to order a sale on the grounds of the respective economic circumstances of the parties.
Held by Peart J in setting aside the order of the Circuit Court and declaring that both parties were entitled to be registered as joint owners of the premises on a 50-50 basis, that the plaintiff’s parents held the premises in their name on a resulting trust for both parties and desertion could not disentitle a spouse to any pre-existing property rights. Section 4 of the Act of 1868 was the most appropriate provision to be applied to the circumstances of the case and the defendant had discharged the onus under that section of proving that there was a good reason why the court should not order the sale of the premises, being a family home within the meaning of section 2 of the Family Home Protection Act 1976 as, in the absence of an agreement between the parties, an order for sale could not be made under the Partition Acts unless the court was also satisfied that it should dispense with the consent of the non-agreeing spouse under section 4 of the Act of 1976.
By Equity Civil Bill dated 4th April 2001, the plaintiff commenced proceedings in which she seeks the following reliefs:
1. An order for the sale of premises (hereafter referred to as "the premises"), pursuant to the Sections 3 and 4 of the Partition Act, 1868 as amended by the Partition Act 1876;
2. An order directing that all necessary accounts and enquiries be taken as to the rents and profits received by the defendant arising out of his occupation of the premises and leasing of same up to the date of judgment herein;
3. an Order assessing the amount of interest due to the plaintiff in respect of her share of the rents and profits from the premises;
4. An order for the division of the net proceeds of sale between the parties hereto in such proportion as to this Court may seem just and proper;
5. An order giving directions concerning carriage of sale and all ancillary directions;
6. Such further and other relief as to this Honourable Court shall seem fit;
7. The costs of these proceedings.
This matter came before the Circuit Court on 26th June 2002, and the learned Circuit Court Judge made an order that the premises be sold by public auction, and that the net proceeds be divided as to 40% thereof to the defendant, and as to 60% thereof to the plaintiff, and he made certain ancillary orders in relation to the sale. The learned Circuit Court Judge divided the net proceeds of sale in the way he did in order to take into account the rent received by the defendant for a number of years and also the costs of the proceedings. This appears from the Circuit Court Order dated 26th June 2002.
It is against this Order that the matter comes before this Court on appeal by way of rehearing.
The background to the dispute between the parties arises against the following background facts.
The premises were built by Dublin Corporation in the 1940s, and thereupon the plaintiff's parents went into occupation of the premises as tenants of the Dublin Corporation. They resided there until they each went to England in 1966 and 1968 respectively. Having moved into occupation of the premises, they raised their six children in the premises, including the plaintiff.
The plaintiff and the defendant were married in 1966. For the first couple of months after their marriage, they lived in other rented accommodation, but in 1966 they moved into the premises the subject of these proceedings, and lived there as husband and wife. It was upon her father's leaving to seek work in England, that the plaintiff and her husband moved back into the premises. Her mother was living there on her own, and it seemed a sensible arrangement that the plaintiff and the defendant should cease renting separate accommodation and that they should move into the premises with the plaintiff's mother.
The rent payable to Dublin Corporation was in the order of about £2 per week. The plaintiff did not work outside the home after her marriage, so that the defendant was the sole breadwinner. The arrangement apparently arrived at was that after they moved into the premises, the plaintiff and defendant would pay the rent to Dublin Corporation. It is a fact that being the sole breadwinner at all material times, the rent was paid from the defendant's wages. The plaintiff gave evidence that it was she who actually paid the rent, but from her husband's wages.
The plaintiff's mother moved to England to join her husband in 1968.
The plaintiff and defendant had five children while living in the premises. Their first child was born in 1967; and the others were born respectively in 1968, 1970, 1978 and 1980.
In the early 1970s, perhaps around 1970/71, Dublin Corporation introduced a tenant purchase scheme, so that tenants could purchase the premises from Dublin Corporation. The plaintiff and defendant wanted to avail of this scheme, but the fact is that they were not the tenants themselves, and would not therefore be in a position to avail of the 30% discount on the purchase price which was available to tenants who had been in occupation as tenants for more than 10 years. It was therefore arranged that the premises would in fact be purchased by the plaintiff's parents, but that the plaintiff and defendant would actually discharge the repayments under the Transfer Order. The plaintiff says that this way of proceeding was in fact suggested by an official of Dublin Corporation. At any rate, this arrangement was put in place, and the plaintiff's parents were then recorded on the Land Certificate, City of Dublin, as full owners, subject to the charge on the folio in respect of the outstanding purchase monies.
It is of relevance to note at this stage that while in England, the plaintiff's father, in 1977, made a Will with an English solicitor, in which he left the premises to the plaintiff and the defendant jointly. It is contended by the defendant that it was in fact the plaintiffs father's intention originally to leave the premises only to him, and not to the parties jointly. The plaintiff said in her evidence that her father was by nature rather patriarchal in his attitudes and would have automatically thought that the house should be in the husband's name only, but that when she asked him to leave it to them jointly, he did so. It was put to the plaintiff in cross-examination that it was clear that her father had wanted to leave the house only to the defendant. The plaintiff did not agree and said it was just that her father thought in terms of property being in the husband's name, because he was an old-fashioned type who thought like that. Indeed some corroboration for this can be gleaned from the terms of her father's Will, which seems to be worded on an assumption that her father considered himself to be the sole owner of the...
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