The Family Home: Constructive and Resulting Trusts in Irish and English Law
| Author | Erik Gannon |
| Position | Junior Sophister Law student, Trinity College, Dublin |
| Pages | 1-18 |
THE
FAMILY
HOME:
CONSTRUCTIVE
AND
RESULTING
TRUSTS
IN
IRISH
AND
ENGLISH
LAW
ERIK
GANNON*
It
is
a
truism
to
say
that
equity
is
based
on
principles
of
justice
and
conscience.'
In
pursuit
of
these principles equity
has
made
regular
and
varied
use
of
the
trust, particularly
in
matters pertaining
to
property
disputes.
A
trust
has
been
described
as
"a
relationship
recognised
by
equity
which
arises where
property
is
vested
in
a
person
(or
persons)
called
trustees, which
those
trustees hold
for
the
benefit
of
other
persons
called
cestuis
que
trust
or
beneficiaries".
2
While trusts
have
been
variously
categorised
and
subdivided,
the
two
categories
with
which
this
article
is
primarily
concerned
are
constructive
and
resulting
trusts.
Both
arise
by
operation
of
law
and
are
therefore
not
bound
by
any
of
the statutory
formalities
that
regulate
other
forms
of
trust.
3
Despite
its
simple
principles
equity
has
struggled
to
balance
justice
and
conscience
within
the
traditional
trust framework.
The
question
of
beneficial or
equitable
ownership
of
the
family home
has caused
problems
for courts
throughout the
common
law
world,
with different
jurisdictions
approaching
the
problem
from
different
perspectives,
utilising
different
doctrines,
each
with
different
consequences.
This
article
primarily
concerns
itself
with
the Irish
and
English
approaches employed
to
determine rights and
interests
in
the
family home.
4
Junior Sophister
Law
student,
Trinity
College, Dublin.
Equity
is
the
body
of
rules
which
evolved
to
mitigate
the
severity
of
the
rules
of
the
common
law.
Its
origin was
the
exercise
by
the
Chancellor
of
the residual
discretionary power
of
the
King
to
do
justice
among his subjects
in
circumstances
in
which,
for
one
reason
or
another,
justice
could
not
be
obtained
at a
common
law
court. For
historical background
see:
Plucknett,
Concise
History
of
the
Common
Law
(5th
Ed.,
Butterworth,
1956).
2
Hanbury
and
Martin,
Modern
Equity
(15th Ed.,
Round
Hall
Sweet and
Maxwell,
1997),
at
45.
3
Express
trusts
are
bound
by
formalities imposed
by
various
statutes,
e.g.
Statute
of
Frauds
(Ireland),
1695.
4
Whilst
much
of
the case
law
in
this
sphere
of
law
is
set
in
a
marital
context,
equitable
principles
apply
equally
to
non-married
couples.
However,
modem complementing
legislation
has
concerned
itself
primarily
with
married
couples
to
the
potential
detriment
of,
for
example,
non-married co-habitees.
See
infra,
at
12.
©
1999
Erik
Gannon
and
Dublin
University
Law
Society
Trinity
College
Law
Review
The
Irish
Approach
Direct
Contributions
As
a
general
principle,
where
one
party
transfers
property
to
another
in
the
absence
of
consideration
it
is
presumed
that the
grantee
holds
the
property
in
question
by
way
of
resulting
trust
for
the
grantor.
This
presumption
may
be
rebutted
by
evidence
of
a
contrary
intention
5
or by
the
presumption
of
advancement.
6
It
has
long
been
recognised
that where
property
is
purchased
in
one
partner's
name
but
a
direct
contribution
to
the purchase
price
has
been
made
by
the other partner,
the
property
will
be held
on
a
resulting
trust proportionate
to
their
direct
contribution.
7
This was
recognised
by
Kenny
J. in
C.
v.
C.
8
A
property
was
purchased
by
and
vested
in
the sole name
of
the
husband.
The
wife
had
provided
part
of
the
deposit
monies
and
contributed
to
certain
mortgage repayments. When
the
marriage
broke
down
the
wife
applied pursuant
to
section
12
of
the
Married
Women's
Status
Act,
1957,
claiming
a
one
half
beneficial
interest
in
the
home.
9
Kenny
J.
examined
the
extent
of
the
applicant's
contributions
and
granted
a
declaration,
based
on
the principle
of
proportionate
interest,
that
the
applicant
in
this
case
was
entitled
to
a
one
half
beneficial
interest
in
the
home
to
be
held
by
the
respondent husband
as
trustee.
This principle
of
proportionate
interest
was re-iterated
in
W
v.
W.Y'
and
confirmed
by
the
Supreme
Court
in
McC.
v.
McC."
This
principle
is
subject
to
agreements
or
arrangements
to
the
contrary
thus
permitting
the
parties
to
exclude the
presumption
of
a
resulting
trust.12
'McEneaney
v.
Shevlin
32.
6
See
Delany,
Equity
and
the
Law
of
Trusts
in
Ireland
(Round Hall Sweet
&
Maxwell,
1996),
at
142.
Also
W.
v.
W. [1981]YILRM
202.
7
Hereinafter,
all
references
to direct
contributions
to
the
purchase
price
shall include
contributions towards mortgage
instalments
also.
'
The
notion
of
resolving
matrimonial property
disputes
by
the
application
of
a
trust
was referred
to two
years
previously
by
Kenny
J.
in
Heavey
v.
Heavey
1.
9
Section
12
provides
for
"the determination
of
any question
arising between
husband
and
wife
as to
the title
or
possession
of
any
property".
Either
party
can
apply
to
the
High
Court
or,
at
the option
of
the applicant and
irrespective
of
the value
of
the
property
in
dispute,
to
the
Circuit
Court
to
determine
the
question.
The
statute
gives
the
courts
a
complete discretion
in
recasting
property
interests where
the
parties
are
married.
:0
202.
'
1.
12
G.K.
v.
E.K.,
Unreported, High
Court,
6
November
1985,
O'Hanlon
J.
[Vol.
2
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