M.C v B.S

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 17 June 2008
• Neutral Citation: [2008] IEHC 463
• Court: High Court
• Docket Number: [2007 No. 79 C.A.]
• Date: 17 June 2008

C (M) v S (B)

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE PARTITION ACTS 1868-1876 AND

IN THE MATTER OF THE PREMISES SITUATE AT 39 LC DUBLIN 15

BETWEEN

M.C.

APPLICANT

AND

B.S.

RESPONDENT

[2008] IEHC 463

[No. 79 C.A./2007]

[Circuit Appeal No. 7013/02]

THE HIGH COURT

LAND LAW

Partition

Equity - Husband and wife - Nullity - Matrimonial property - Presumption of advancement - Applicability of presumption where marriage annulled - Joint mortgage executed over property - Earnings from both parties' during part of marriage paid into common fund - Whether wife entitled to beneficial interest in house by reason of direct and indirect contributions towards repayment of mortgage - Joint tenancy - Sale in lieu of partition - Soar v Foster [1858] 4 K & J 152 followed; Stack v Dowden [2007] 2 AC 432 distinguished; Jones v Maynard [1951] 1 Ch 572, Pitt v Jones (1880) 5 AC 651 and Richardson v Feary (1888) 39 Ch . 45 approved - Court's discretion to order sale of property - Partition Act 1868 (31 & 32 Vict, c 40), s 5 - Order for purchase of interest made (2007/79CA - Herbert J - 17/6/2008) [2008] IEHC 463

C(M) v S(B)

Facts The parties had been married and had children. A family home had been purchased and both were registered as joint owners of the property. Subsequently the parties separated and the wife moved out of the family home and the respondent stayed in the property with the children. The marriage was subsequently declared null and void. Evidence was given as to the financial input of the parties regarding payments made on the mortgage. The applicant (the former wife) sought an order pursuant to the provisions of the Partition Acts 1868 and 1876, providing for the sale, in lieu of partition, of the property in question. MC also sought a declaration that she was entitled to a 50% beneficial interest in the premises and in the contents of the premises.

Held by Herbert in finding the following. The correct approach was to regard the property as having been purchased by strangers. Equity therefore presumed that the person who paid the greater share did not intend to make a gift of the difference to the other person and, that they therefore hold the joint tenancy in trust for themselves as tenants in common in proportion to the amounts contributed. The court was not satisfied that MC had expended such money on the premises that it would be fair and reasonable that she should be entitled to acquire the interest of BS. The evidence established that BS had with great difficulty to retain possession of this property. There was no evidence that the motive of MC in seeking a sale was vindictive, but the court was satisfied that it was wholly mercenary. The court was not satisfied that the court should exercise its discretion to direct a sale of this property. If BS were to voluntarily undertake to purchase the share of MC and MC were to accept that offer, the court could still order a valuation of her share and she would then have the option of accepting that valuation or not.

Reporter: R.F.

O'D v O'D UNREP MURPHY 18.11.1983 1984/8/2595

F (F) v F (C) 1987 ILRM 1 1986/6/550

JOINT TENANTS & TENANTS IN COMMON ACT 1539 (UK)

JOINT TENANTS FOR LIFE OR YEARS ACT 1540 (UK)

JOINT TENANTS ACT 1542

PARTITION OF LANDS ACT 1697

REAL PROPERTY LIMITATION ACT 1833 S36

REAL PROPERTY LIMITATION ACT 1833 S44

CONWAY CO-OWNERSHIP OF LAND 2000 PARA 3.20

O'NEILL-KIELY PRINCIPLES OF EQUITY AS APPLIED IN IRELAND 1936 7

DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 4ED 2007 4-12

PARTITION ACT 1868 S2

PARTITION ACT 1876

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 S1

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 SCHED

SUPREME COURT OF JUDICATURE (IRL) ACT 1877 S36(5)

COURTS OF JUSTICE ACT 1924 S17

CONSTITUTION SAORSTAT EIREANN 1922 ART 73

CONSTITUTION ART 50.1

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S8

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 S2(1)

REGISTRATION OF TITLE ACT 1964 S91

HAYE'S ESTATE, IN RE 1920 1 IR 207

FAMILY LAW ACT 1995 S36

SOAR v FOSTER 1858 4 K & J 152 70 ER 64

DUNBAR v DUNBAR 1909 2 CH 639

STACK v DOWDEN 2007 2 WLR 831 2007 2 AC 432 2007 2 AER 929

FAMILY HOME PROTECTION ACT 1976

W v W 1981 ILRM 202 1981/8/1344

F (R) v F (M) 1995 2 ILRM 572 1985/8/2121

O'CONNELL v HARRISON 1927 IR 330

GISSING v GISSING 1971 AC 886 1970 3 WLR 255 1970 2 AER 780

MCGILL v S (L) 1979 IR 283

N (E) v N (R) & C (M) 1992 2 IR 116 1992 ILRM 127 1991/13/3200

JONES v MAYNARD 1951 CH 572 1951 1 AER 802

PARTITION ACT 1868 S3

PARTITION ACT 1868 S5

EVANS v JONES 31 WR 495 1883 52 LJ Ch 304 48 LT 567

PARTITION ACT 1868 S4

PITT & ORS v JONES & ORS 1879-80 5 APP CAS 651

RICHARDSON v FEARY 1888 39 CH D 45

SWAN v SWAN 1820 8 PRICE 518 146 ER 1281

SINCLAIR v JAMES 1894 3 CH 554

MCC (D) v MCC (M) 1986 ILRM 1 1984/5/1409

C v C 1976 IR 254 1977 111 ILTR 133

POWER v CONROY 1980 ILRM 31 1980/9/1685

KELLY v CAHILL 2001 1 IR 56 2001 2 ILRM 205 2001/13/3676

CONTAINERCARE (IRL) LTD v WYCHERLEY 1982 IR 143

D'ALTROY'S WILL TRUSTS, IN RE 1968 1 WLR 120 1968 1 AER 181

THORNLEY v THORNLEY 1893 2 CH 229

MASON v MASON (ORSE PENNINGTON) 1944 NI 134

GILLETTE v HOLT 2001 CH 210 2000 3 WLR 815 2000 2 AER 289

C (J) v C (JH) UNREP KEANE 4.8.1982 1982/14/2814

FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375

DUNCAN & SCULLY MARRIAGE BREAKDOWN IN IRELAND 1990 264-267

OSBORNE & BABINGTON THE JURISDICTION & PRACTICE OF COUNTY COURTS IN IRELAND 2ED 1910 CHAP 9

1 Mr. Justice Herbert on the 17th day of June, 2008.

2 The first issue requiring to be addressed in this appeal is a jurisdictional one. In the amended Equity Civil Bill, issued on the 17 ^th December, 2004, the applicant/appellant claims an Order pursuant to the provisions of the Partition Acts 1868 and 1876, providing for the sale, in lieu of partition, of the lands and premises in the title hereof, together with an Order permitting the applicant to purchase the same and the contents therein by paying the defendant/respondent such portion of the equity of redemption as this Court should determine.

3 The court was referred to the decision in O'D. v. O'D. (Unreported, High Court, Murphy J., 18 ^th November, 1983) and, to the decision in F.F v. C.F. [1987] 1 I.L.R.M. 1, per Barr J.

4 In my judgment, this Court undoubtedly has jurisdiction to grant the relief claimed in these proceedings.

5 The common law writ, "de participatione facienda" entitled co-parceners at common law or by the custom of gavelkind, to compel a division of the land (Vide: E.J. Foster, "The Law of Joint Ownership and Partition of Real Estate" 1878), (Stevens and Sons). It is referred to by the author of Britton (1290-1292) Bk. 3 CAP 7 (Vide F.M. Nichols, (1983) Reprint). It is also considered by Sir Thomas Littleton, a judge of the Court of Common Pleas in the Reign Edward IV in his famous work "The New Tenures" considered it have been written between 1450 and 1460, (Vide W.S. Holdsworth, "History of English Law", Vol. 8 (3 ^rd Ed. Rewritten)),

6 The Statute 31, Henry VIII Cap. 1 [1539] which applied only to England, Wales or the Marches of the same, extended the benefit of this writ to joint tenants and tenants in common "of any estate or estates of inheritance". The Statute 32 Henry VIII Cap. 33 [1540] which had a similar territorial application, gave to joint tenants and tenants in common for a term for life, or year or years and to joint tenants or tenants in common where some one of them held for life or years with another who held an estate in inheritance or freehold, a right to seek partition by Writ of Partition before the Court of Chancery upon their Case or Cases.

7 Similar legislation was enacted in Ireland by the Statute 33 Henry VIII Cap. 10 [1542]. This statute provided, in the first section, that all joint tenants and tenants in common who held an estate in inheritance "within this land of Ireland", were compelled by virtue of the Act to make partition,

"By writte de participatione facienda, in that case to bee devised in the King our soveraign lord's court of chancerie of this land, in like manner and forme as coparcioners by the common lawes of this land have been and are compelled to do, and the same writte to be pursued at the common law".

8 In the third section of this Statute, it was provided that in the case of joint tenants or tenants in common for life, year or years, or where one has an estate of inheritance and the others for life or years, partition should be compellable from thenceforth by writ of partition, "to bee pursued out of the King's court of chauncerie upon his or their case or cases".

9 The Irish Statute 9 William III [1697] Cap. XII, was a procedural Act only, "for the more easy obtaining partition of lands in co-parcenary, joint tenancy and tenancy in common", upon writs of partition. The Statute 3 and 4 William IV Cap. 27 [1833], "an Act for the limitation of actions and suits relating to real property and for simplifying the remedies for trying the rights thereto", by s. 36 provided that no writ of partition should be brought after the 31 ^st December, 1834. By s. 44 of that Act, the legislative provision was stated to apply to Ireland.

10 In Foster, (opus cited) p. 89, it is stated that prior to this date the Court of Chancery had assumed jurisdiction over partition, "the Common Law jurisdiction having, however, been rendered practically obsolete by the concurrent jurisdiction which had sprung up in Equity was finally abolished by Act 3 and 4, William IV Cap. 27 S. 36". The history of this 'usurpation' is discussed by Foster (opus cited) at Chap. 10, pp. 103 to 109; by Holdsworth (opus cited) Vol. 15, and by an extant author, H. Conway, ...