Forced Partition or Sale
Legislation
Land and Conveyancing Law Reform Act, 2009
PART 7
Co-Ownership
Unilateral severance of a joint tenancy.
30.— (1) From the commencement of this Part, any—
( a) conveyance, or contract for a conveyance, of land held in a joint tenancy, or
( b) acquisition of another interest in such land,
by a joint tenant without the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31(2)(e) .
(2) In subsection (1)“consent” means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.
(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.
(4) Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.
Court orders.
31.— (1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.
(2) An order under this section includes—
[PA 1868][PA 1876]
( a) an order for partition of the land amongst the co-owners,
( b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
( c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
[AJA 1707, s. 23]
( d) an order directing that accounting adjustments be made as between the co-owners,
( e) an order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld,
( f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
(3) In dealing with an application for an order under subsection (1) the court may—
( a) make an order with or without conditions or other requirements attached to it, or
( b) dismiss the application without making any order, or
( c) combine more than one order under this section.
(4) In this section—
( a) “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee,
( b) “accounting adjustments” include—
(i) payment of an occupation rent by a co-owner who has enjoyed, or is continuing to enjoy, occupation of the land to the exclusion of any other co-owner,
(ii) compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement),
(iii) contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it),
(iv) redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land,
(v) any other adjustment necessary to achieve fairness between the co-owners.
(5) Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996.
(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.
Annotations:
Modifications (not altering text):
C3
Application of section restricted (3.09.2021) by Affordable Housing Act 2021 (25/2021), s. 22(5), S.I. No. 450 of 2021.
Relationship with other enactments
22.— …
(5) Section 31 of the Conveyancing Act shall not apply in respect of the affordable dwelling equity.
…
Bodies corporate.
32.— (1) A body corporate may acquire and hold any property in a joint tenancy in the same manner as if it were an individual.
[BC(JT) A 1899]
(2) Where a body corporate and an individual or two or more bodies corporate become entitled to any property in circumstances or by virtue of any instrument which would, if the body or bodies corporate had been an individual or individuals, have created a joint tenancy, they are entitled to the property as joint tenants.
(3) On the dissolution of a body corporate which is a joint tenant of any property, the property devolves on the other surviving joint tenant or joint tenants.
Partition Act, 1868 (pre 2010)
1. This Act may be cited as The Partition Act, 1868.
2. In this Act the Term ‘the Court’ means the Court of Chancery in England, the Court of Chancery in Ireland, the Landed Estates Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, within their respective Jurisdic tions.
3. In a Suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if it appears to the Court that, by reason of the Nature of the Property to which the Suit relates, or of the Number of the Parties interested or presumptively interested therein, or of the Absence or Disability of some of those Parties, or of any other Circumstance, a Sale of the Property and a Distribution of the Proceeds would be more beneficial for the Parties interested than a Division of the Property between or among them, the Court may, if it thinks fit, on the Request of any of the Parties interested, and notwithstanding the Dissent or Disability of any others of them, direct a Sale of the Property accordingly, and may give all necessary or proper consequential Directions.
4. 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 of Parties interested, individually or collectively, 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 Distri bution of the Proceeds instead of a Division of the Property between or among the Parties interested, the Court shall, unless it sees good Reason to the contrary,
direct a Sale of the Property accordingly, and give all necessary or proper conse quential Directions.
5. In a Suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if any Party interested in the Property to which the Suit relates requests the Court to direct a Sale of the Property and a Distribution of the Proceeds instead of a Division of the Property between or among the Parties interested, the Court may, if it thinks fit, unless the other Parties interested in the Property, or some of them, undertake to purchase the Share of the Party requesting a Sale, direct a Sale of the Property, and give all necessary or proper consequential Directions, and in case of such Undertaking being given by the Court may order a Valuation of the Share of the Party requesting a Sale in such
Manner as the Court thinks fit, and may give all necessary or proper consequential Directions.
6. On any Sale under this Act the Court may, if it thinks fit, allow any of the Part es interested in the Property to bid at the Sale, on such Terms as Nonpayment of Deposit, or as to setting off or accounting for the Purchase Money or any Part
thereof instead of paying the same, or as to any other Matters, as to the Court seem reasonable.
9. Any Person who, if this Act had not been passed, might have maintained a Suit for Partition may maintain such Suit against any One or more of the Parties interested, without serving the other or others (if any) of those Parties; and it shall not be competent to any Defendant in the Suit to object for Want of Parties; and at the hearing of the Cause the Court may direct such Inquiries as to the Nature of the Property, and the Persons interested therein, and other Matters, as it thinks necessary or proper with a view to an Order for Partition or Sale being made on further Consideration; but all Persons who, if this Act had not been passed, would have been necessary Parties to the Suit, shall be served with Notice of the Decree or Order on the Hearing, and after such Notice shall be bound.
Partition Act 1876 (pre-2010)
1. This Act may be cited as the Partition Act, 1876, and shall be read as one with the Partition Act, 1868.
2. This Act shall apply to actions pending at the time of the passing of this Act as well as to actions commenced after the passing thereof, and the term ‘action’ includes a suit, and term ‘judgment’ includes decree or order.
3. Where in an action for partition it appears to the court that notice of the judgment on the hearing of the cause cannot be served on all the persons on whom that notice is by the Partition Act, 1868, required to be served, or cannot be so served without expense disproportionate to the value of the property to which the action relates, the court may, if it thinks fit, on the request of any of the parties interested in the property, and notwithstanding the dissent or disability of any others of them, by order, dispense with that service on any person or class of persons specified in the order, and, instead thereof, may direct advertisements to be published at such times and in such manner as the court shall think fit, calling upon all persons claiming to be interested in such property who have not been so served to come in and establish their respective claims in respect thereof before the Judge in Chambers within a time to be thereby limited. After the expiration of the time so limited all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the court (including persons under any disability), shall be bound by the proceedings in the action as if on the day of the date of the order dispensing with service they had been served with notice of the judgment, service whereof is dispensed with; and thereupon the powers of the court under the Trustee Act, 1850, shall extend to their interests in the property to which the action relates as if they had been parties to the action; and the court may thereupon, if it shall think fit, direct a sale of the property and give all necessary or proper consequential directions.
4. Where an order is made under this Act dispensing with service of notice on any person or class of persons, and property is sold by order of the court, the following provisions shall have effect:
(1) The proceeds of sale shall be paid into court to abide the further order of the court:
(2) The court shall, by order, fix a time, at the expiration of which the proceeds will be distributed, and may from time to time, by further order, extend that time:
(3) The court shall direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made:
(4) If at the expiration of the time so fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the court shall distribute the proceeds in such manner as appears to the court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the court, and with such reservations (if any) as to the court may seem fit in favour of any other persons (whether ascertained or not) who may appear from the evidence before the court to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons, and thereupon all such other persons shall by virtue of this Act be excluded from participation in those proceeds on the distribution thereof, but notwithstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person.
5. Where in an action for partition two or more sales are made, if any person who has by virtue of this Act been excluded fom participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subse quent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent (if any) to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time.
6. In an action for partition a request for sale may be made or an undertaking to purchase given on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorised by order in lunacy), or other person authorised to act on behalf of the person under such disability, but the court shall not be bound to comply with any such request or undertaking on the part of an infant unless it appear that the sale or purchase will be for his benefit.
7. For the purposes of the Partition Act, 1868, and of this Act, an action for partition shall include an action for sale and distribution of the proceeds, and in an action for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition.
Cases
Hughes and another v D’Arcy
Rolls Court.
7 May 1874
[1874] 8 I.L.T.R 130
Sullivan M.R.
Sullivan, M. R.
I cannot conceive a more mistaken proceeding than the forcible putting an end to D’Arcy’s possession. It is for that act the action was brought. One of the questions in this case is whether D’Arcy had a right to maintain his possession as undivided owner by law, for if he had I have no right to restrain that action. It is the resumption of the right by Hughes that must be judged of as an original act, apart from the former giving up possession. It has been objected that the plaintiff was equitable owner of five-fifth’s of the estate, and was clothed with a right of immediate possession. I do not concur in that proposition at all. In a partition suit, until conveyance executed, the parties retain the legal right, unless that right is put an end to by an order in the cause. It was attempted to show, on behalf of the plaintiff, that an equitable owner must be regarded as a potential owner at law—that is true in the *130 case of a purchaser, but I have never known that it carries with it the right of possession on the part of a purchaser. Before conveyance executed one of the co-owners should not turn the other out, until conveyance executed the legal estate remained in full force, and if either of the co-owners thinks he has a right, the proper mode of proceeding is by an order, and not by taking forcible possession. I must have a clear equity to found the injunction upon; the only equity I can see is that there was an election, but that should be the foundation of the order of the court. If Hughes, instead of this assertion of his right by force when he found the gate locked by D’Arcy, had taken proper legal advice, I venture to say he would have been advised to execute his conveyance, to compel D’Arcy to execute the deed, and then enter into possession. As to the general staying of the action, I am of opinion that I have no right to restrain the action on this branch of the case. As to the second branch of the case, as to D’Arcy setting up a tenancy from year to year in Church Park, I have not a shadow of doubt that the proposition that D’Arcy who was the guardian of these minors, should set up a tenancy from year to year, is one of the most absurd propositions that could be put forward. D’Arcy could not get his ward to make that contract either by confirmation or original contract; Borrows v. Walls, 5 De. G. M’N. & G. 233. As to Ellen the case is clear; as to Mary MacDonnell, when she reached her age of 21 years in 1869, she put herself into the hands of independent persons, she appointed her own agent, she filed a bill for partition and was in a hostile position to D’Arcy. Dillon Hughes was appointed her agent, and on 15th Nov., 1871, he gave a receipt for rent to D’Arcy himself by name, as representative of Marne, for Church Park This acknowledges him to be tenant of Church Park. D’Arcy cannot rely on a tenancy created before Mary got into adverse hands, nor can he impart into his subsequent possession any portion of an equity acquired before she was of age, until the whole facts were laid bare to her. I will not allow D’Arcy to have the chance of obtaining a verdict by setting up this tenancy from year to year, by force of an original equity which he cannot set up in this court, and which is likely to lead astray. There is another equity, higher than the former one; in the partition suit he allowed the lands to be partitioned, on the supposition that he was not tenant of Church Park—can he keep seven-twelfth’s of the estate, and then subsequently turn round and say he is tenant of Church Park; D’Arcy must be restrained from setting up any tenancy from year to year in the lands of Church Park. If the bill had not prayed for a general injunction, I would have made D’Arcy pay the costs, for there never was a more inequitable proceeding, than setting up this tenancy. Both parties must pay their own costs up to this hearing.
Farrell v Donnelly
Court of Appeal.
4 November 1912
[1913] 47 I.L.T.R 2
Barry L.C., Holmes L.J, Cherry L.J
Barry, L.C., having stated the facts, said there was no question that the plaintiff had acquired the full interest of John Donnelly—no doubt subject to redemption—and the important public question raised was obvious—namely, whether in the case of holdings held under a vesting order duly registered subject to an annuity payable to the Land Commission, it was or was not possible for the judgment creditor to take any step to realise the debt due to him. Section 30 of the Land Law (Ir.) Act, 1881, had nothing in it to disparage, much less to vitiate, the plaintiff’s judgment mortgage, and nothing to qualify the effect of s. 7 of the Judgment Mortgage Act, 13 & 14 Vict., c. 29. Neither did s. 54 (3) of the Irish Land Act, 1903, in any way qualify or invalidate a judgment mortgage effected as in the present case. Mr. Justice Wylie’s judgment in In re Roulston, [1909] 1 Ir. R. 306, was an express decision to that effect. The plaintiff was making no attempt to have the purchased lands sub-divided, and he was in no way offending against any obligation due to the *3 Land Commission. The Equity civil bill did not pray for an order for partition, but on the contrary for a sale of the lands. The terms of the Partition Act, 1868, had been much relied on by Mr. Wylie. In sections 3 and 4 the introductory words in both cases were:—“In a suit for partition where, if this Act had not been passed, a decree for partition might have been made,” then in the conditions stated the Court would have the power to order a sale of the property and a distribution of the proceeds instead of a sub-division among the parties interested in the lands. Assuming that on the terms of the Act of 1868 the consent of the Land Commission was required for a partition, he knew of no reason for believing that their consent would not be given. He did not, however, agree that the consent of the Land Commission was necessary to the exercise of jurisdiction. Partition was not sought, he thought, because of the amendment made in the Act of 1868 by the Partition Act, 1876. Under s. 7 of the latter Act it was provided that “For the purposes of the Partition Act, 1868, and of this Act, an action for partition shall include an action for sale and distribution of the proceeds, and in an action for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition.” The appeal should be dismissed with costs.
Holmes, L.J., said, as he was not prepared to hold that the plaintiff had any greater right than his judgment mortgagor would have, he dealt with the case as if there was no mortgage, and John were himself the plaintiff applying for an order to sell. Ownership of lands by two or more persons in undivided shares was an unsatisfactory kind of tenure; and there had always existed judicial machinery by which one of the owners could obtain a division. This could have been enforced by judgment at common law; but the usual procedure for the purpose had been a suit for partition in the Court of Chancery. This often proved a most expensive and intricate remedy, and he remembered the satisfaction of the legal profession on the passing of the Partition Act, 1868, by which power was given to the Court upon the request of any interested party to order a sale of all the lands instead of a division thereof when that course appeared to the Court the more beneficial. In the case of three or four persons seized in fee-simple of landed property in certain individual shares as tenants in common or as joint tenants, subject to an annuity or rentcharge not arising under or in any way connected with the Irish Land Purchase Acts, would the existence of such an annuity or rent-charge prevent one of the owners from applying to the Chancery Division or to the Civil Bill Court, if within its jurisdiction, to partition the lands? He could not conceive any legal principle that could be relied on to defeat an action of that nature on that ground, nor had they been referred to any authority in support of such a contention. When a partition was carried out each owner was given a specific portion of the lands instead of an undivided share thereof; but an annuity or rent-charge charged on all the lands need not and ought not to be affected thereby. The person entitled thereto retained every remedy which he had before for enforcing his right, and all the liabilities of the owners in relation to such right continued. It followed from this proposition that the present case came within it, unless the fact that the fee-simple had been acquired under the provisions of the Land Purchase Acts made a difference. This was a narrow although important question, and he did not propose to discuss any other. If s. 30 of the Land Law (Ir.) Act, 1881, did not sustain the appellant’s contention it should fail. The object of the enactment was to annex certain conditions to land sold under the Act while it was subject to any charge in respect of an annuity payable to the Land Commission, and passing over, for the moment, the introductory words. Sub-section 1 (a) provided that “the holding shall not be subdivided or let by such proprietor without the consent of the Land Commission until the whole charge due to the Land Commission has been repaid.” The case had been argued by Mr. Wylie as if these words stood alone, and without any qualification; and if that were so it was possible that his inference would follow—namely, that sub-division would thereby be absolutely forbidden, and that as there could be no partition there could be no sale in lieu of partition under the Act of 1865. The fallacy, however, was that there was a distinct qualification to be found in the words that began and governed the entire section:—“As between the Land Commission and the proprietor for the time being of any holding for the purchase of which the Land Commission have advanced money in pursuance of this part of this Act the following conditions shall be imposed so long as such holding is subject to any charge in respect of an annuity in favour of the Land Commission.” The subdivision forbidden in sub-s. 1 (a) was only forbidden in so far as it would affect in any way the Land Commission or the annuity *4 payable thereto. That was the only meaning he could attach to the introductory statement. If the four owners in this case agreed to divide the lands into four distinct parts, and each to take possession of one of them instead of his previous undivided share, would such an agreement be illegal as between them, and after it had been entered into and acted on, could it be disregarded by any of them? He thought not; and he was also of opinion that if there could be a division by agreement, there also could be in theory a partition by suit. He said “in theory” because any court having regard to the power given to the Land Commission to sell by sub-s. 1 (b) would regard a sale more beneficial than a partition, and exercise the power conferred by the Act of 1868. In dismissing the appeal for these reasons he was not to be understood as rejecting the other grounds which had been relied on as leading to the same conclusion.
Cherry, L.J., said the case was, in his opinion, governed by the decision of that Court in Flood’s Estate. That decision was in the judgment of FitzGibbon, L.J., expressly based upon the ground that s. 44 of the Landlord and Tenant Act, 1870, only contemplated voluntary assignments by the proprietors of the holdings and not proceedings by creditors of such proprietors to enforce payment of their debts. He thought a similar construction should be put upon s. 30 of the Act of 1881. He was fortified in that conclusion also by Kennelly v. Enright, 8 L. R. Ir. 33, and Foley v. Gallagher, 2 L. R. Ir. 35, 389.
Roper v Roper
County Court.
11 October 1907
[1907] 41 I.L.T.R 231
His Honour Judge Cooke
Donegal, Oct. 11, 1907
Partition—40 & 41 Vict., c. 56, s. 33 (9)—Partition Act, 1868, s. 3—Jurisdiction to decree a sale in lieu of partition where there is no consent to a partition by the landlord, without whose consent the lands cannot be partitioned.
Under s. 3 of the Partition Act of 1868, there is no power to sell lands in lieu of partition without a consent to a partition by the landlord, as the lands could not be partitioned without this consent.
Michael Roper died intestate on March 19, 1882, leaving a widow and six children, all minors, him surviving. At the time of his death Michael Roper was possessed of two farms of land, upon which fair rents had been fixed prior to 1882. No administration was ever taken out, and the widow and children all remained in possession until 1907, when Daniel Roper, the eldest son, brought the present writ, claiming a sale in lieu of partition. There was no consent to a partition obtained from the landlords of the respective holdings.
Patton for the plaintiff.—The plaintiff is entitled to one undivided ninth as tenant in common with his mother and the other children. He is entitled to the assistance of the Court in realising his interest. The property has ceased to be assets of Michael Roper, deceased (M’Clure v. Garrett’s Contract, 1 Ir. R. [1899] 225), and partition, or sale in lieu thereof is his only remedy. He referred to s. 3 of the Partition Act, 1868.1 A sale is, undoubtedly, more beneficial than partition. True, we have no consent to a partition from the landlords of the two holdings, but if the court thinks a sale more beneficial than partition, this consent will not be necessary. The Act says, “where a decree for partition might have been made,” a sale may be directed, and a decree could always have been made, though without the necessary consent it could not have been enforced. The Act never intended to compel a plaintiff to procure an unnecessary document which these consents might be in the present case, and would certainly be in cases falling within s. 4.
Mr. Maguire (solicitor) for defendant.—There being no consent to a partition there can be no sale in lieu thereof.
His Honour referred to the decision of the Lord Chief Baron in Tench v. Glennon, 34 Ir. L. T. R. 157, and said:—“I can make no order for partition, and it follows that I can make no order for sale, but I will adjourn the case to next sessions to see whether the consent of the landlords can be obtained.”
O’D v. O’D
Unreported (High Court) (1983 No.20 CA) (Judgment delivered 18th November, 1983)
Murphy J:
This is an Appeal from the decision of the Learned President of the Circuit Court given on the 18th July, 1983.
The plaintiff and the defendant were married on the 16th March, 1978, and there was one child of the marriage, namely Robert, who was born on the 14th October, 1980.
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. 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.
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 figure may be misleading as, due to the fact that the plaintiff has 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 Portmamock 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 plaintiffs father might be prepared to post pone 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.
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 home 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 Acts 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.
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 Carson’s Real Property Statutes second edition at page 745 were relied upon. These included Pittv. Jones 5 Ch.App. 661; Drinkwater v. Ratcliffe L.R. 20 Eq. 530; Pemberton v. Barnes 6 Ch. App. 693; Re Whitwell 19 L.R.Ir. 45 and Re Langdale I.R. 5 Eq. 572.
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 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’.
With only minor amendments the Act of Henry VIII governed the law relating to partition until the passing of the 1868 Act. Prior to that Act there was not jurisdiction vested in the Courts to direct a sale of the property held in common and the only remedy was one of partition.
Authority can be found for the proposition that – during that period at any rate –
a decree for partition in a suit instituted and entertained under the Court’s equit able jurisdiction was regarded as a matter of right upon proof of title (see 2 Comyns Digest (fifth edition) page 762). In this context it is pertinent to note that in the case of Turner v. Morgan 8 Ves. 143 that Lord Eldon did partition a single house notwithstanding the very considerable inconvenience that this caused to the parties. In that case the Court enforced the award of the Commission of Perambulation notwithstanding the fact that exception was taken by the defendant on the ground that the Commission had allotted to the plaintiff the whole stack of chimneys, all the fireplaces, the only staircase in the house and all the conveniences in the yard. Certainly this is precedent and authority for the proposition that a single dwelling can be and has been partitioned. In addition the argument made in that case by Counsel on behalf of the plaintiff included a reference to a case of Benson in which another house was partitioned ‘by actually building up a wall in the middle’.
However the existence of these precedents does not establish conclusively that the order is of right or that the Court is without discretion in the matter. In the Irish case of North v. Guinan Beatty’s Chancery Cases 342 the partition of a house in College Green, Dublin, held under a lease was refused as the landlord might have obtained an injunction to restrain the parties from executing the partition by any act amounting to waste. It seems to me that decision represents both good law and good sense. In general principle the Court would not ordinarily make an order which would be futile. Clearly it is inappropirate to make an order directed to
parties to proceedings when its execution depends upon the co-operation of parties not bound by the order.
Reference may also be found to a somewhat esoteric exception to the rule that a house may be partitioned in Coke on Littleton 31 B/321 (cited in Turner v. Morgan) where it is pointed out that a castle can not be partitioned as it may be necessary for the defence of the realm. That particular exception involves a recognition of the principle that partition could not be granted where this conflicted with the public good. Translated into contemporary and more mundane circumstances it would seem to follow that partition of the dwellinghouse should not be directed if, for example, this were to prejudice the proper planning of the area in which the building was located. That the granting of a decree of partition is not an absolute right of the parties or a mere formality of the Courts is made clear by the practice of the Courts as indicated in relation to the High Court in Seton on Decrees but more particularly of the Circuit Court in Babington’s County Courts Practice and Carl ton’s book on the same topic. In the form provided in Babington for the primary order in a partition suit (see page 655) enquiries are directed as to the estate and shares of the parties; the existence of any agreement prohibiting sub-division; the availability of any necessary consent of the landlord; the existence of any charge in favour of the Commissioners of Public Works or the Land Commission and con firmation that all parties interested are before the Court before appointing a surveyor to prepare a map of the proposed division. This procedure seems to me to confirm that the making of the actual order of partition does and always did require the Court to be satisfied by evidence made available to it or to an officer of the Court that it was a proper case in which to make the particular order sought.
As no evidence was produced before the Court – and no inquiries sought or
directed – I believe it would be inappropriate to make an absolute order for partition and on that ground alone I would set aside the order of the learned Citcuit Court Judge.
However the matter is even more complex than that. The plaintiff had relied on the 1542 Act as conferring on the Court the jurisdiction to decree partition. In fact that Act was repealed by the Statute Law Revision (Pre-Union Irish Statutes) Act 1962. That this change was not adverted to is not surprising as the error appears to have arisen some considerable time ago and has been perpetuated since. Claims for the partition of the matrimonial home are common indeed and in many if not most of such claims in the High Court the matter is entitled in various Acts including expressly the 1542 Statute.
Why precisely the 1542 Act was repealed in Ireland is not clear. How and why the Partition Action disappeared in England is explained by Overend J. in Hill v. Maunsell-Eyre [1944] I.R. 499 at 505 and elsewhere. Counsel in the present case were unable to offer any explanation for the repeal in this jurisdiction of the enabling statute. In the circumstances Counsel for the plaintiff/appellant was driven to argue that the jurisdiction to decree partition – as opposed to a sale in lieu of partition – is now exercisable in accordance with the principles which the author ities show as having been established by the decided cases in respect of the practice of the Courts of Chancery. Whilst it is clear that a separate equitable jurisdiction arose (see Mundy v. Mundy 2 Ves. Jnr. 122) I confess to having some hesitation in accepting that principles which evolved as to the manner in which a statutory jurisdiction might be exercised could survive the repeal of that statute. However, assuming rather than accepting that the jurisdiction of the Courts exists, it is of necessity part of the inherent equitable jurisdiction and as such it would seem to me necessarily subject in its exercise to the proper discretion of the Court. In my view the granting of an order of partition on the basis of the evidence available would be wholly inappropriate.
In fact the partition of the family home is not what the plaintiff/appellant seeks.
That was the order granted by the learned President of the Circuit Court and it was from that order that the plaintiff/appellant now appeals. What he seeks is an order for sale in lieu of partition. Such an order will not be made where the Court sees good reason to the contrary. What constitutes good reason for the purposes of that section has been considered in a number of decided cases of some antiquity. A number of these cases are reviewed by Monroe J. in Whitwell’s Estate 19 LR.Ir. 45. Monroe J. himself appears to have been satisfied that it would be inappropriate to order a sale if it was likely to prove abortive or if it would have involved the parties in accepting a significant sacrifice.
In my view what constitutes good reason at the present time would properly have regard to the rights of the parties under the Family Home Protection Act 1976. Needless to say the old authorites had never considered this problem or anything remotely akin to it. Apart from the fact that the rights conferred by the Family Home Protection Act 1976 in this respect were novel it must be remembered that the Partition Acts preceded the Married Women’s Property Act 1882 so that over the centuries and in particular in pursuance of the 1542 Act a partition would have been effected by a husband on behalf and in the right of his wife.
It was argued that the 1976 Act did not repeal the Partition Acts or any of them. It was contended, therefore, that if a proper case for a partition was made out and an appropriate order granted that this dispensed with the necessity for procuring the consent of a spouse under that Act. In my view that argument is not well founded. There is no reason to suppose that an order for partition or sale in lieu thereof was intended to overreach the provisions of the Family Home Protection Act. Even if an order were made under the 1868 Act it must be recognised that this would not consititute a parliamentary conveyance and would not of itself correct imperfections in title. It would only be the fact that the spouses themselves joined in the·conveyance that would overcome the need to procure their consent and it seems to me unthinkable that the Court would direct a conveyance to be made under the 1868 Act without having regard to the right of a spouse to withold his or her consent and indeed the express duty imposed on the Court not to dispense with consent without taking into account all the relevant circumstances including in particular those specified in sub-section 2 of Section 4 of the 1976 Act.
Counsel on behalf of the plaintiff/appellant recognised that this argument entailed acceptance of the proposition that a spouse who had no beneficial interest in the Family Home enjoyed the statutory veto on the sale thereof where another spouse who had a beneficial interest, however miniscule, could have his or her statutory veto overborne by a sale directed under the Partition Acts. In my view a Court would be justified in concluding in the circumstances of present times, under our Constitution and of the rights conferred by the Family Home Protection Act that the loss of the statutory veto represented good reasons within the meaning of Section 4 of the Partition Act 1868. This interpretation of the relevant legislation is greatly facilitated by the fact that a contrary conclusion would lead to a result which is unjust to the point of absurdity.
In these circumstances I refuse the Appellant/plaintiffs claim to an order for sale in lieu of partition and I am satisfied that in the circumstances of the case – even if jurisdiction to order partition subsists – that an order would not properly be made in the present case. Accordingly I would set aside so much of the order of the learned President as decreed partition.
BM v AM,
unreported, High Court, Peart J., April 3, 2003By 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 re-hearing.
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 plaintiff’s 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 premises, rather than merely a joint owner thereof with his wife.
The plaintiff said that when she asked him to leave it to both of them he did so willingly. She denied that her father had not wanted her to have any share in the house. This is of some relevance and I shall return to it in due course.
According to evidence given by Mr Seamus Foley, an official from Dublin Corporation (now called Dublin City Council), the purchase price at the time of this purchase was £2275. Allowing the discount of 30% (£682.50), this left a net purchase price of £1592.50. This sum was to be discharged over a period at the rate of £3.61 per week. These payments were discharged from the defendant’s wages, and the purchase price was finally discharged in the month of October 1996.
The next significant event occurred in 1981. In that year the plaintiff’s parents wished to return to Ireland and returned to live out the remainder of their lives at the premises. At that time the plaintiff and defendant were living in the premises with their five children, the eldest being at that time about 14 years old, and the youngest being about one year old. The available accommodation at the premises was inadequate to accommodate the plaintiff’s parents, and accordingly it was decided by all concerned that the best solution was to build on an extension to the premises for her parents. The cost of the proposed extension was between ten and eleven thousand pounds. This sum was raised by availing of a Grant from Dublin Corporation of about £3600, together with an additional loan from Dublin Corporation of £4000, the balance being contributed in equal amounts of about £800 (sterling) from each of four of the plaintiff’s siblings. The additional repayments resulting from the additional loan were discharged out of the defendant’s wages. This additional loan was in turn discharged on 28th February 1996.
The extension was duly completed in or about the month of March 1981, and the plaintiff’s parents moved back into the premises.
The plaintiff’s mother died in 1985.
The next significant event is that due to unhappy differences between herself and her husband, she left the family home in August 1989, and went to stay with one of her sisters in the Isle of Man. She left alone, leaving three of her children in the family home with the defendant. One of other two children was living with one of her sisters in England, and another with her sister in the Isle of Man. The plaintiff was not prepared to return to the family home unless the defendant vacated the family home.
The plaintiff says that during the first year after she left, she returned to Ireland on about six occasions, solely for the purpose of seeing her children. During the second year following her departure, it was more difficult to see her children for reasons which were not given in detail, but she instituted custody proceedings which resulted in her gaining custody of the children concerned. Following November 1992, her children lived with her in England. Since that time she has not returned to Ireland, and neither asked for nor received any maintenance from her husband. It appears that in 1995, the plaintiff obtained a Divorce in England from her husband.
She has been unaware of her husband’s domestic circumstances since 1995, but believes that he has been in a relationship with another lady since some time before her children left Ireland to live with her.
The plaintiff’s father died on the 27th July 1991. She came back for the funeral. In a document stated to be an affidavit answering the plaintiff’s Notice for Particulars (arising out of the defendant’s defence in these proceedings), the Defendant says that on the occasion of her father’s funeral, he and the plaintiff had a conversation described as follows by the defendant:
“I asked her what she intended doing about our family home as there was roughly another three years mortgage outstanding. In reply she said angrily that she was in love with the priest and was about to get divorsed (sic) and had no further interest in me or the mortgage and would prefer if I did not get in touch with her again. Therefore I had no contact with her until I heard from her solicitors in this matter.”
This conversation was put to the plaintiff in cross-examination, but she said simply that it did not take place.
In due course a Grant of Probate issued in respect of her father’s Will on the 28th November 1995 to Mr N. T., solicitor, as the lawfully appointed attorney of her brother, D.R.O’B. who resides in Spain. He is the executor named in her father’s Will. It appears that originally, her said brother had appointed the defendant to be the attorney for the purpose of extracting the Grant, but later Mr T. was appointed and proceeded to extract the Grant.
There was some delay in having the title to the premises altered to reflect the terms of the Will, but on the 11th May 2001, Mr T. wrote to the defendant sending him the necessary forms to be signed by him in order to have him and the plaintiff registered as joint owners of the premises under the terms of the Will. It is a fact that some weeks prior to this letter, the plaintiff had commenced these proceedings since she had not been able to obtain the defendant’s co-operation in the sale of the house. She was seeking the sale of the premises and an equal distribution of the net proceeds of such sale.
Correspondence with the defendant to this end had commenced as far back as 16th January 1996. This correspondence went on for some years without resolution, and these proceedings were then pursued in order to have the matter of the sale of the house resolved.
The plaintiff also called Mr P.M., a Private Investigator, who gave evidence of having been instructed by the plaintiff’s solicitor, to call to the premises in order to ascertain if in fact the defendant was living at the premises. Mr M. said that he had been a member of An Garda Siochana, but now operated a private investigation firm, M.I. Limited. He gave evidence of having called to the premises firatly on 22nd January 2000 and again on the 1st April 2001. He said he had called on another occasion, but had not made any note or record of that third call and could not therefore give any evidence other than in respect of the two dates mentioned. He said that on the 22nd January 2000, he called to the premises, and his report of that visit states that when he called there appeared to be three people living at the house, one male and two female, all appearing to be of oriental origin. Some short time later another man who appeared to be Irish emerged from a room off the kitchen. Mr M. said the foreign persons were very pleasant, and when he asked to speak to the defendant, he was told that he was not there, but one of them gave him the defendant’s mobile phone number. Mr M. also asked to speak to a R.T. but they did not know her, and appeared genuine about this. Mr M. says that a check of the premises revealed that a M. and J.T. were living there. Mr M. also says that he rang the house on several occasions in order to speak with the defendant but on no occasion was he there. He also could see no car at the premises that was registered in the defendant’s name.
In his report dated 26th January 2000, Mr M. says that the average rent in the area for a house of this kind would be in the order of about £850 per month. He says that he cannot say for how long the house had been rented out but that certainly it has been rented out to oriental people for the three years preceding his report.
Mr M. was cross-examined, and it was put to him that the fact that there did not appear to be a car outside the premises did not mean that the defendant’s car might not have been parked on the road, but not immediately outside the house. It was put to him that in fact this house does not have its own driveway in which a car could park, but Mr M. thought it had, but could not be adamant about that. He recalled seeing a motorbike in the driveway, but was sure that there did not appear to be a car outside or near the house, and he therefore was fairly sure that there was no car at or near the house which would belong to the defendant.
Mr M. confirmed in cross-examination that the electricity account with ESB was in the defendant’s name. In relation to M. and J.T. referred to in his report, Mr M. said it appeared from the Register of Electors that these names were shown as being of the address of the premises. He had not checked the Register himself, but someone had checked this for him.
In relation to his further visit to the premises on the 1st April 2001, Mr M. provided a report dated the same day, in which he states that when he called to the premises on that date, he spoke to a young woman who said that she had rented the house from the defendant. He asked to speak to the defendant, but the lady said that he did not live there. She said that he called regularly and would be there in fact on the following day. The lady asked for Mr M.’s mobile phone number so that she could get the defendant to call him. Mr M. says that he asked for the defendant’s mobile number, but the lady declined to give it to him, but said she would ask the defendant to phone him. Mr Mullin said that it did not appear that there was any other person living at the house, and that there was no car in the driveway.
This report also states that on the same date he called to a premises in Dublin city, which I understand to be a house owned at the time by Ms. R.T., the defendant’s current partner. His intention was to see if the defendant was residing at that address. However, he established only that there was a lady named W., and that there was no record of the defendant ever having lived there. He also states that neighbours from whom he had made enquiries did not know the defendant.
The defendant delivered a Defence to these proceedings on the 14th May 2001, and an Amended Defence on the 24th March 2002. In these documents the defendants accepts that D.A.O’B. and L.O’B. are the registered owners of the premises, but he denies that they are what is described in the Defence as “the official owners”, on the basis that it is the defendant who has at all times discharged the mortgages on the premises. The defendant claims that he is the official owner. The defendant also denies that on the death of L.O’B., the said D.A.O’B. became the sole legal owner. The defendant also denies Probate has been extracted to the estate of D.A.O’B. as he the defendant is challenging the contents of the Will. The Defendant in his amended defence denies that the plaintiff has or is entitled to any interest in the premises, either legal or beneficial. He also denies having let the premises, and asserts that at all times the premises have been his family home and sole residence. He claims to have an entitlement to the entire beneficial interest in the premises, or such proportion thereof as the Court shall determine. He asserts this on the basis that it has been he alone who discharged the rent and the mortgages on the premises, including the additional mortgage of £4000 obtained to construct the extension to the premises in or about 1981.
In his amended defence, the defendant also claims that the Partition Acts are unconstitutional and fail to protect the defendant’s rights pursuant to the Family Home Protection Act, 1976. At the commencement I ruled that this latter point was not one appropriate to be dealt with on the hearing of this appeal, being raised for the first time in the amended defence delivered on the morning of the commencement of this appeal. The Attorney General had been served with the required Notice under the Rules in relation to the constitutional issue, but having so ruled, I excused the Attorney General from further participation in this appeal.
Evidence on behalf of the defendant:
Ms. R.T. gave evidence that she has been the partner of the defendant for about 9 years. It would appear that her sister is married to the defendant’s brother, and that at some point after the plaintiff went to England, Ms. T. was asked to help the defendant in relation to minding the children who were then living with him, looking after the house. A relationship developed between her and the defendant in or around late 1992. At that stage it appears that she went to live in the premises along with her two children. Up to that time, however, she says she resided in her house in Finglas, and she says that the defendant resided at all times at the premises. She stated that the defendant had never moved into her house. She also said that the premises had never been rented out by the defendant.
In relation to the evidence that was given by Mr M. about finding tenants in the house, and the defendant not being there on the occasions he called, Ms. T. said that on those occasions they must simply have been out at the time. She said that the M. and J. T. who were in the premises were in fact brothers of hers who had come back for a short while from Canada after the funeral in Canada of a family member. They were not tenants. In relation to Mr M. saying that he found tenants of oriental origin in the premises, she said that she had never seen them there and that the house had never been rented out to anybody. In cross-examination, she also said she could not explain Mr M.’s evidence about tenants being on the premises.
The defendant’s brother, A.M. also gave evidence. He stated that he had resided in the United Kingdom since about 1983, but that he used to return to Ireland about twice a year and would stay with the defendant at the premises on those occasions. During the last five years or so, he has been returning more often, perhaps three or four times. On some of these occasions he would stay with the defendant, on others he would stay with another of his brothers. He said he had never seen anybody else living in the house, except the defendant, Ms. T. and her two children. He was not aware if the house had ever been let to tenants, but as far as he was concerned there had never been tenants there.
In cross-examination, the defendant said that while the plaintiff was still living in the premises, he had not stayed there when he came back to Ireland. He also said he had never visited Ms. T.’s house in Dublin, or stayed there.
The defendant gave evidence also. There is no need to set out all of the defendant’s evidence, as much of it simply conforms to the plaintiff’s evidence as to the history of them both coming to live with the plaintiff’s parents, and the arrangement whereby the premises were purchased from the Dublin Corporation, by the mechanism by which it would be done in the names of her parents, since they were the tenants ( and thereby also gain the benefit of the 30% discount on the purchase price), but that he would discharge the repayments to Dublin Corporation. There is not any relevant disagreement as to that transaction, except that the defendant says that he had a discussion with the plaintiff’s father and that her father told him that the house would be his (i.e the defendant’s). He also said that he was never aware that the plaintiff’s father had made a Will leaving the house to the plaintiff and defendant in their joint names.
The defendant also agreed that when it came to building the extension in 1981/82, an additional mortgage had been obtained in the sum of £4000, and that there was also a Grant given on the basis of the plaintiff’s mother’s illness. He disagrees however with the plaintiff’s evidence that four of her siblings each contributed £800 sterling towards the cost of the extension. He thinks it was more like about £800 or £1000 between the four of them.
The defendant also said in evidence that if he had been aware that the plaintiff’s father had made a Will leaving the premises to he and his wife jointly, he would have taken steps to try and change that situation. He said he would not have stayed there paying the mortgage, only to have nothing at the end of it. He said that it was not until he received a letter in 2001 from the plaintiff’s solicitors that he first became aware that the house was left to them jointly. He said that in the divorce proceedings which the plaintiff had commenced in England, there had been no mention of the premises. He was not aware that the plaintiff had a house of her own in England.
He stated categorically in his evidence that he had never rented out the house to anybody. In relation to Mr M.’s evidence about not seeing any car belonging to the defendant on the occasions when he called to the premises in January 2000 and April 2001, the defendant said that in fact he drives a van, and that it may have been parked elsewhere in the vicinity of the house, and that it was a small cul-de-sac and that there were often quite a number of cars parked along the road.
He also said that he had never resided anywhere other than in the premises.
Under cross-examination, the defendant agreed that the premises was the family home of his family and the plaintiff’s parents. He agreed that following the arrangements for purchase in 1971/72, it was the intention that they would reside there, and that on his death, the plaintiff would continue to reside there as her home. He reiterated that he had had a conversation with the plaintiff’s father to the effect that he would make the repayments and that the house would be his, and that the plaintiff’s father had not stipulated that anybody else would own the house. There was, he says, never any suggestion or agreement that the house would be jointly owned. He said that the house would be primarily his but his wife would reside with him, and that she would get it when he died.
The defendant says that by leaving the house to him and his wife jointly, the plaintiff’s father in effect reneged on his agreement with him that the house would be his alone. The defendant was referred to his Reply to Particulars (which is in the form of an affidavit for some reason), wherein he refers to having had a conversation with his wife at the time of her father’s funeral (a conversation which the plaintiff denies took place) in July 1991. The exact quotation from this document is set out earlier in this judgment. He was asked why, if as he contends, the house was his and that he was not aware of anything to the contrary until he received a solicitor’s letter in 2001, he was asking the plaintiff in July 1991 what she intended doing about the family home. He was in some difficulty in reconciling these matters.
He said that he may have stayed at his partner’s house in Dublin on a few occasions, prior to her moving in with him, but never moved into that house.
Legal Submissions:
Mr Roughan B.L made submissions first of all on behalf of the plaintiff. He said that there was not much dispute between the parties as to the relevant facts upon which this case fell to be decided. He said that it was the defendant’s case that there was a resulting trust in favour of the defendant resulting from the fact that it was he who had paid the rent and discharged the mortgage repayments on the premises. However, he said, this was not the case in fact, because the purchase price for the premises took account of a 30% discount on the price arising because of the fact that the plaintiff’s parents had been tenants for more than ten years. While he accepted that the defendant had paid the rent and the repayments, the fact was also that when the extension was built in 1981/82, a Grant had been received on account of the illness of the plaintiff’s mother, and there had been contributions from some of the plaintiff’s siblings. Even if there was a presumption of a resulting trust (which he submitted there was not), that presumption could be rebutted by evidence of the intention of the parties at the time, and he submitted that it was clear from the evidence, including the terms of the plaintiff’s father’s Will that he intended that the premises would be there for the benefit of both the plaintiff and the defendant. This he submitted was also evidence of advancement, and the Court was referred to the decision of Keane J. (as he then was) in the case of J.C.v. J.H.C. (unreported), 4th August 1982. In that case, the parties to the transaction were husband and wife, whereas in this case the parties relevant to the transaction are the plaintiff’s parents, and their daughter and son in law. In relation to the case Keane J. (as he then was) was dealing with, the defendant husband had put up all the money to purchase a house, and the property had been put into the joint names of the husband and his wife. At page 3 of the unreported judgment, Keane J. (as he then was) states:
“Where property is taken in the joint names of two or more persons, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the money. This presumption may however be rebutted; in particular the circumstance of the person into whose name the property is conveyed being the wife of the person advancing the money may be sufficient to rebut the presumption under the doctrine of advancement.”
Shortly thereafter on page 4 of the unreported judgment, the learned judge continues:
“It is clear that the defendant intended the property to be jointly occupied by the plaintiff and himself during their lifetimes but also intended the legal ownership to devolve upon her if he predeceased her. It is quite plain that he intended to give it to her; and that accordingly the property has been held from the beginning and is now held by the plaintiff and the defendant on a joint beneficial tenancy.”
As I have said, this case is not on all fours with the instant case. It might be if the plaintiffs in the present case were Mr and Mrs M., and Mr and Mrs O’B. were defendants, in a claim by the former that the latter in whose name the premises were held, in fact held the premises on a resulting trust for former, since they had made all the payments to Dublin Corporation. However, that is not the case. Nevertheless, the case is of some assistance in relation to intention, but I will deal with that matter at the conclusion of this judgment.
Martin Hayden S.C. on behalf of the defendant submitted that questions about whether there was an advancement as a rebuttal to a presumption of a resulting trust did not arise in this case, since the property was in the names of the plaintiff’s parents.
In contending that there was a resulting trust in favour of the defendant arising out of the transaction in 1972 when he says the defendant alone in effect bought the premises, but in the names of the plaintiff’s parents, by discharging all the repayments to Dublin Corporation until their final discharge in 1996, Mr Hayden is relying firstly on a number of very old cases, namely Dyer v. Dyer (1788) 2 Cox Eq 92; In re A Policy No. 6402 of the Scottish Equitable Life Assurance Society (1902) 1 Ch. 282; and In the Matter of John Slattery (1917) 2 IR 278. It is unnecessary for me to deal individually with these cases, save to say that they endorse the accepted principle, referred to by Keane J. (as he then was) in J.C. v. J.H.C. to which I have already referred, wherein the learned judge stated that where property is taken in the joint names of two or more parties, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the purchase money, a presumption which is capable of rebuttal under certain circumstances, such as, inter alia, advancement or gift. This principle is also set out clearly in Hilary Delaney’s work, Equity and the Law of Trusts, 2nd Ed. at pages 156-157.
Mr Hayden also submits that the alleged contribution to the cost of the extension should be seen by the Court as a buying out by those siblings of their obligation to provide for and assist their parents when they were in England, and not as a gift to the plaintiff to assist in the cost of the extension. He also points to the fact that it was the defendant who continued to look after the plaintiff’s parents until their deaths, after the plaintiff left to live in England. This is a factor, he submits, that ought to be taken into account in the defendant’s favour.
Mr Hayden also submitted that the plaintiff is now seeking to derive a benefit from delay on her part in bringing this claim for partition and sale. In this context he referred to R.F. v. M.F. (1995) 2 ILRM 572 wherein it was held by Henchy J. in the Supreme Court that the fact that the wife in that case had allowed eight years to pass before making any complaint that the transfer of the farm was oppressive or unfair was so tainted with delay as to be inconsistent with her claim that she had acted under undue influence when she executed a transfer of the property in question. That case is a case of undue influence, unlike this case, but Mr Hayden refers to it in relation to the delay on the part of the plaintiff in bringing these proceedings. I shall return to this question of delay in my conclusions.
He submits that in the event that the property is sold and the proceeds divided as the court may decide, the defendant is faced with current house market conditions, compared with those prevailing at and shortly after the death of her father in 1995. Again this is a factor, he submits, to which the court must have regard in exercising its discretion under the Partition Acts. He submits that at the very most, assuming the court decides that the plaintiff has any entitlement to any share in the premises, the plaintiff should be limited to the extent of 30%, being the portion represented by the discount in the purchase price when the premises were purchased from Dublin Corporation in 1972.
Mr Hayden submits that the Court must have regard to the fact that if the premises were to be sold and the plaintiff were to be found entitlement to a joint share in the premises, the effect is that the defendant would not be able to purchase an alternative premises from his share, given his age and present market conditions.
James Dwyer S.C. on behalf of the plaintiff, responded to Mr Hayden’s submissions. He summarised the facts, and submitted that it was clear that the plaintiff’s parents were the tenants of the premises prior to 1972, and that in 1971/1972 it was agreed among the family generally that the premises would be purchased from Dublin Corporation by the plaintiff and the defendant, but that for the reason given in evidence, the house would be bought in the names of the plaintiff’s parents. The fact was that the defendant was the only breadwinner in the marriage of the plaintiff and the defendant, and that it was obvious to all that it would be his wages which would be used to make the repayments. But that cannot be used to exclude the plaintiff from any beneficial interest in the premises, since to do so would be to go against the clear intention of all concerned that the house was being bought so that the plaintiff and defendant could live there with their children, and that on the death of either the plaintiff or defendant, the survivor would have sole ownership. He says that this clear intention is also corroborated by the provisions of the Will executed by the plaintiff’s father in 1977, and which remained unchanged until his death in 1995.
In this regard, Mr Dwyer referred to R.F. v. M.F. (supra) wherein it was held that the equitable doctrine of advancement, as applied to transactions between husband and wife, has the effect that when the husband, at least where the circumstances show that he is expected to provide for the wife, buys property and has it conveyed to his wife and himself jointly, there is a presumption that the wife’s paper title gives her a beneficial estate or interest in the property. Unless the presumption is rebutted by evidence showing a contrary intention on the part of the husband at the time of the transaction, he will be deemed to have entered into the transaction for the purpose of conferring an estate or interest on the wife.
Mr Dwyer submits that the Will speaks from the death of the plaintiff’s father and that from that time the plaintiff was entitled to be registered as joint owner with the defendant. Any delay from that date until 2001 cannot prejudice the plaintiff in his submission. In any event he submits that the defendant has not suffered any prejudice from any such delay, since he was well aware from 1995 that his wife and he had both been left the house under the terms of the Will, and that it was the defendant who had frustrated an earlier resolution of this matter due to his failure to cooperate in the registration by failing to execute the necessary documents when asked to do so by solicitors acting for the plaintiff.
Conclusions:
The first matter I am satisfied on based on the evidence I have heard is that in 1971 it was agreed between Mr and Mrs M., and her parents, Mr and Mrs O’B., that the tenant purchase scheme introduced by Dublin Corporation around that time, should be availed of and that the premises should be purchased at the price stipulated which took into account the discount to which Mr and Mrs O’B. were entitled due to the fact they had been tenants for the required period, which I believe to be not less than ten years. I am also satisfied that, be it correct or not, they were of the belief that this could be done only by the purchase being achieved in the names of Mr and Mrs O’B.
I am further satisfied that the purchase would be on the basis that the repayments should be made by Mr M., but on the basis that he and not Mrs M. was working, but that the intention of Mr and Mrs O’B. was that the house would be bought in this way so that Mr and Mrs M. would be the owners from the O’B.s’ point of view, even if Mr O’B. may have been of the opinion, being that sort of man, that Mr M. would be the owner. I have no doubt that even though he may have been of that view, it was not with a view to his daughter, the plaintiff, being excluded as an owner in any way that would deprive her of any beneficial interest in the premises. It is clear from the evidence that the intention was beyond any doubt that the premises would be the M.s’ family home and that on the death of Mr M., should that occur prior to Mrs M., that she would be the owner of the premises in due course.
Eventually, as we now know, Mr and Mrs M. separated. The reasons do not concern me, except to say that while the prima facie desertion by Mrs M. would, subject to any claim by her that such desertion resulted from any unreasonable behaviour on Mr M.’s part disentitle her from claiming maintenance, it could not, even on the version of events most favourable to Mr M., disentitle her to any pre-existing property rights, and in particular, to any interest she may have had in the premises.
As we know, Mr and Mrs O’B. passed away in the 1980s, Mr O’B. having executed a Will in England in which he left the premises to Mr and Mrs M. jointly. This is consistent with the fact that it was the O’B.s’ intention that the house was in effect being bought from Dublin Corporation, though in the names of the O’B.s, for the benefit of Mr and Mrs M.
It is the defendant’s contention now that since it was he who was discharging the repayments, and did so until all monies had been repaid, including those due on foot of the second mortgage obtained in 1981/82, the premises are in fact his on the basis that his wife provided no consideration. In effect he is saying now that if the purchase had been effected at the time into the joint names of he and his wife, rather than the O’B.s, his wife would be holding her share of the premises on a resulting trust for his benefit, and that therefore she should not be entitled to a beneficial interest therein, even though the premises were left to them both by Mr O’B. Implicit in such a submission is a contention that Mr O’B. was not entitled to leave the premises by his Will either to Mr M. alone or to Mr and Mrs M. jointly, as the O’B.s were holding the premises on a resulting trust for him alone, they having provided no consideration. Leaving aside completely for the moment the fact that the O’B.s had in fact contributed 30% of the consideration by reference to the discount in the price already referred to, and leaving the further matter of the Grant and the contributions from Mrs M.’s siblings in 1982, there is in my view no reality in Mr M.’s contention.
It follows also from Mr M.’s submissions, that if, which he denies, Mrs M. has an entitlement to a joint interest arising from her father’s Will, that there is a presumption of a resulting trust in his favour in respect of her interest. That would imply that the income from which Mr M. paid the repayments was never the family income. The fact is that Mrs M. did not work during the marriage, her job being to be at home to look after the children, and look after the needs of the home.
I conclude from this rather convoluted and difficult set of facts that the O’B.s certainly held the premises in their name on a resulting trust for both Mr and Mrs M. Had Mr O’B. left the premises in his Will to some other party, and had the M.s’ marriage not broken down resulting in a separation and divorce, both Mr and Mrs M. would have been entitled to bring an action to have themselves declared the beneficial owners on the basis of a presumed resulting trust. There is no possible evidence by which the O’B.s’ personal representatives could have rebutted that presumption on the basis either of advancement from the M.s to the O’B.s, or by any evidence of a contrary intention on the part of the O’B.s.
I am also satisfied that Mr O’B. made his Will in the way he did because he knew that the house was in reality belonging to the M.s and that the Will was the easiest way of dealing with the situation that would arise on his death. I do not have to deal with the fact that in his Will at the time he executed it, he ignored the fact that his wife, Mrs O’B., was in fact a joint owner with him of the premises, but it confirms, I suppose, that he was the sort of man who believed the normal thing was for the husband to own the property, but to go any further , as I have said, and conclude that he would not have wanted his daughter to have an interest in the premises, is too far-fetched to be real.
It is not necessary to consider any further the legal authorities to which I was referred in connection with resulting trusts, advancement and so forth. Those concepts are not really relevantly in dispute. I am satisfied that by whatever route one travels in order to unravel the facts of what happened over the years, the result is the same, namely that the plaintiff and the defendant are entitled now to be registered as joint owners of the premises, and that there is no resulting trust arising between the plaintiff and the defendant. Both have a joint interest in the premises, and I will deal later with the respective proportions in which that joint interest ought to held by them.
Having so found, I must then consider the questions which arise under the Partition Acts, since the plaintiff is seeking relief under those Acts so that the premises can be sold, with the proceeds being divided in proportions which the Court would consider just in all the circumstances.
The first thing to be said is that the relief sought by the plaintiff is a discretionary relief.
The Court’s power to order a sale is contained in Section 3 of the Partition Act 1868, which states as follows:
“In a suit for partition, where, if this Act had not been passed, a decree of partition might have been made, then if it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions.”
It is clear from the wording of the section that the Court has a wide discretion in whether it orders a sale of the premises. All relevant circumstances can be taken into account. In addition, when the section states “if it appears to the Court that……… a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them”, it is not just the applicant who must be considered but all those interested in the property. If authority is needed for this, it is found in Drinkwater v. Ratcliffe (1875) LR 20 Eq 533, and Fleming v. Crouch (1884) WN 111.
Section 4 of the same Act gives the Court similar powers as follows:
“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, individually or collectively, 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 or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.”
In the latter section the Court also has a wide discretion, except that a sale is mandated by the words “the Court shall, unless it sees good reason to the contrary, direct a sale of the property” (my emphasis). The onus of establishing a good reason to the contrary rests on the party opposing the application. In this regard see Pemberton v. Barnes (1871) LR 6 Ch App 685.
It would appear that Section 4 is the section most appropriate to the present application, since the Court is being requested to make an order by a “party or parties interested, individually or collectively to the extent of one moiety or upwards.”
It follows therefore that the defendant in opposing the application has the onus of establishing that there is a good reason to the contrary. In this regard Mr Hayden has submitted to the Court that if a sale were to be ordered and a division of the proceeds made, the defendant, bearing in mind the current property market and his age (in the context of his ability to obtain a loan) and the circumstances generally which include the fact that the plaintiff has a house in England, would effectively be left without a home. It is also a factor that the premises were, prior to the separation of the parties, the family’s family home.
I am satisfied that the defendant has discharged that onus in the present case and that there is a good reason why the court should not order the sale of the premises. Even if Section 3 were the appropriate section for this application, I am satisfied that the Court, in the exercise of its discretion, ought not to direct a sale of the premises in all the circumstances.
In my view it is also necessary to address the matters in issue in this case in the light of the provisions of the Family Home Protection Act, 1976 (hereinafter referred to as “the 1976 Act”), although Counsel has not addressed me specifically in relation to the implications of the 1976 Act on the question of relief being claimed under the Partition Acts.
It has been decided that any rights a party may have to seek relief under the Partition Acts must be tempered by the effect of the1976 Act, Section 4 of which provides that the court may dispense with the consent of a spouse if it is unreasonably withheld. In the present case, if this court was being asked to dispense with the defendant’s consent to a sale, as being unreasonably withheld, it would not be prepared to do so in the circumstances of this case, as it would not have any sufficient evidence from which to conclude that any withholding of consent is unreasonable.
Section 2(1) of the 1976 Act defines a family home as “primarily meaning a dwelling in which a married couple ordinarily reside. The expression comprises in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before leaving”. It is clear that the premises in this suit come within this meaning.
In the case of AL v. JL dated 27th February 1984, (unreported), Finlay P. (as he then was) was dealing with a very similar set of facts as this case. In that case, it was intended that a family home be purchased in joint names, but in fact the house was put into the name of the husband only, the wife being at the date of purchase under the age of majority. Unhappy differences arose and the wife left the family home to live with another man. During the marriage they had both contributed to a joint pool out of which repayments were made on the mortgage, but following the wife’s departure the husband alone continued the repayments. The husband maintained that the resulting trust upon which the husband in that case held the wife’s interest was a conditional one, namely conditional upon the maintenance of the marriage relationship, and that by leaving her husband, the trust was thereby avoided. The learned President did not agree. At page 4 of the unreported judgment, the learned President (as he then was) states as follows:
“It was the clear intention of these parties that this house should be purchased jointly by them and in my view the events which happened and the circumstances under which it was purchased in the sole name of the husband when viewed through equitable principles must be given the same force and effect as if their intention had been carried out in the first instance, as if they were both grantees under the Deed of Conveyance of an equal share in the house………There is not, in my opinion, in the general principles of equity room for a voidable or conditional trust depending upon the maintenance of the marriage nor can the courts investigate the true reasons for the unfortunate break-up of the marriage in order to ascertain the reality of the beneficial ownership of two people who agree jointly to purchase a house and make each of them contributions towards the redemption of mortgages standing upon it. I am satisfied that the wife is entitled to a 50% share or one half share in the equity of redemption of these premises.”
The facts are sufficiently similar to the present case to make this decision relevant in this case. I have already concluded that Mrs Murphy made an indirect contribution to the household by her involvement at home in the rearing of the children and her running the house, as it were, and this replaces the reference in the above case to both the husband and the wife contributing to a joint pool from which the mortgage repayments were made. I note also that in AL v. JL, there were no children in the marriage.
Finlay P. went on in that case to find that while in the period before the wife left there was a clear entitlement to a 50% joint interest, the husband was entitled to some credit in respect of the period after which the wife left, as he continued to make the repayments on the mortgage from his sole funds. The parties in that case had married in 1975 and the wife had left in 1980. Dealing with the question of what relevantly comprised the equity of redemption in which the wife had a 50% interest, the learned President (as he then was) stated as follows:
“In my view the equity of redemption in these premises as of February 1980 consisted of the then gross market value of the premises, less the amount still outstanding to Irish Nationwide Building Society………Having determined the relationship in terms of percentage between the total amount outstanding on the mortgage as of February 1980 and the gross market value of the premises, it seems to me that the precise form of declaration which I must then make is to declare the wife entitled to one half of the percentage constituting the equity of redemption at that time. To take as a simple example, if the amount outstanding on the mortgage at that time constituted 10% of the gross value of the premises, the wife would be entitled to a 45% share in the ownership of the house.”
Interestingly, the learned then President went on:
“With regard to the claim for a sale of the premises pursuant to the Partition Acts, the position appears to me to be as follows. Having regard to the provisions of the Family Home Protection Act, 1976 in the absence of an agreement between the parties, an order for sale cannot in my view be made under the Partition Acts unless the court is also satisfied that it should dispense with the consent of the non-agreeing spouse under Section 4 of the 1976 Act”.
On the facts of that case, he was not so satisfied. In O’D v. O’D, 18th November 1983 (unreported), Murphy J. had adopted a similar attitude to the impact of the 1976 Act on the question of relief being sought under the Partition Acts in respect of a family home. I respectfully adopt that reasoning for the purpose of the present case.
In the present case, I have already found for the reasons stated that the parties are entitled to be registered as joint owners of the premises. For the purpose of deciding the respective proportions of that interest, the methodology adopted by Finlay P. (as he then was) in AL v. JL seems entirely appropriate for the purpose of doing justice between the parties in this case, given that Mrs M. left the family home in August 1989, after which time Mr M. continued to make the repayments, and Mrs M. was of course no longer at the premises to continue her indirect contribution to the household budget.
It is my view that a valuation of the premises as of August 1989 should be obtained from an independent valuer, and that the amounts outstanding to Dublin Corporation on both mortgages be ascertained as of that date. The court can then calculate what percentage proportion of the market value is represented by the equity of redemption, and will declare the ownership of the premises to be divided on a 50-50 basis of that percentage proportion. I have already found that the O’B.s were entitled to the 30% discount off the purchase price in 1972, and that I am satisfied the plaintiff’s siblings made a contribution of £3200 Sterling to the extension, and that a Grant of £4000 was also obtained derived from the illness of the plaintiff’s mother. Without being necessarily mathematically accurate to the last pound, I am satisfied that all of these matters mean that a 50-50 split between the parties is a fair one, but based on the value of the equity of redemption as at August 1989. As I have said already, this conclusion amounts to the same conclusion I reached when finding that the parties were entitled to be registered as joint owners, there being no resulting trust existing for the benefit of the defendant in respect of the plaintiff’s share, save with the slight modification arising from the methodology emanating from AL v. JL as to the value of the equity of redemption of the premises.
I should just add that I am not satisfied that the evidence is sufficiently clear in respect of the letting of the premises by the defendant after the plaintiff left, in order to make any finding in relation that issue.
Finally, the defendant has said that the plaintiff has delayed in bringing this application and that she ought not to benefit from her delay. I am satisfied that the appropriate way to look at any delay is to see whether the defendant has suffered any prejudice from the delay, even if I were to find the plaintiff to have been guilty of such. I am not so satisfied in the light of my findings and the decision I have come to as to the method of resolving the issues in this case.
I therefore refuse the relief sought by the plaintiff under the Partition Acts, and I also refuse the declaration sought by the defendant that he be entitled to be declared the owner of the entire beneficial interest in the premises. I therefore set aside the order of the learned Circuit Court judge made on the 26th June 2002, and I will adjourn this matter for a period to be agreed with Counsel, at which time I will finalise the order I propose making, when I have received the information I have mentioned, and after I have heard submissions from Counsel as to whether the parties should be registered as either as joint tenants or as tenants in common, in the absence of any agreement being reached between the parties in that regard.
(F) v F (C)
[1985] 12 JIC 0401
Barr J.
This is an appeal from a decision of the learned President of the Circuit Court given on the 10th June, 1985.
The Plaintiff and the Defendant were married on 7th August, 1971. The matrimonial home comprises a dwellinghouse situate at 43, Clonshaugh Heights, Coolock, Co. Dublin, which the parties hold as joint tenants in equal shares under and by virtue of an indenture of lease with Dublin Corporation made on 6th December, 1974.
A point of law raised on this appeal is whether the learned trial Judge in the Circuit Court was correct in deciding that, notwithstanding the repeal of the Act for Jointtenants, 1542 (the 1542 Act) by the Statute Law Revision (Pre-Union Irish Statutes) Act,1962(the 1962 Act), he had power to make an Order for sale of the matrimonial home in lieu of partition on the application of the Plaintiff which was opposed by the Defendant. Counsel for the parties have agreed that this point should be argued and decided by way of preliminary issue before I embark on a hearing of other matters raised on the appeal.
Prior to the enactment of the 1962 Act the right of a joint tenant to partition of the property comprised in the tenancy has been recognised for many centuries. It appears that it was created by the 1542 Act and continued without amendment or alteration until 1962. The ancillary right to an order of court directing a sale of such property and distribution of the proceeds in lieu of partition was created by sections 3 and 4 of the Partition Act, 1868. In 1962 it was decided by the Oireachtas to remove from the statute books many dead and obsolete statutes which pre-dated the Act of Union, 1800. The 1962 Act was duly passed to achieve that purpose. Its full title is as follows
“An Act to promote the revision of the statute law by repealing expressly certain pre-union Irish statutes or parts of such statutes which may be regarded as spent or which have ceased to be in force otherwise than by express repeal or which have, by lapse of time or otherwise, become unnecessary”.
It is provided in section 1 that the enactments mentioned in the Schedule are repealed to the extent specified in the third column thereto. The Schedule contains a list of one hundred and sixty nine statutes from the year 1459 up to the year 1800. The vast majority of these are repealed in their entirety and the 1542 Act is one of those wholly repealed.
Section 2(1) of the 1962 Act provides as follows:
“This Act shall not affect any existing principle or rule of law or equity, or any established jurisdiction, form or course of pleading, practice or procedure, notwithstanding that it may have been in any manner derived from, affirmed or recoginised by any enactment hereby repealed”.
It is evident that this provision is intended to be a safety-net to prevent, inter alia, the inadvertent extinction of any principle or rule of law or equity which is derived from any of the repealed statutes and which is not otherwise provided for in law. The official report of the speech made by the Minister for Justice who moved the second reading of the relevant Bill in the Dail has been opened to me. The Minister, having explained that the purpose of the proposed enactment was to eliminate dead or obsolete statutes or parts thereof so as to facilitate the publication of a new comprehensive series of Irish statute law and the preparation of a meaningful index to the statutes, also adverted in particular to section 2 and indicated that its purpose was to preserve existing principles of law which otherwise might be affected by repeal of the statutes or parts thereof referred to in the Schedule. It is clear, therefore, and the point is conceded on behalf of the Defendant, that in passing the 1962 Act the Oireachtas had no intention of interfering with any active legal right or principle of law which might have been created by or derived from any of the statutes which it was decided to repeal.
Mr. Durkan has argued that the Plaintiff’s primary right to partition of the property has its origin in the 1542 Act and has been swept away, albeit inadvertently, by the repeal of that statute by the 1962 Act, and that the Plaintiff’s right as joint tenant, subject to the approval of the court to an Order for sale of the matrimonial home in lieu of partition provided for in the Partition Act, 1868, being ancillary to the primary right to partitiion, is dependent on the continued existence of the latter.
This argument raises several points of law but it is necessary to deal only with one of them. There is no doubt that the 1542 Act has been lawfully repealed. The root issue is what effect, if any, section 2 (1) of the repealing statute has in preserving a joint tenant’s right to partition of the property. I have no doubt that the right in question is within the meaning and intent of the phrase “any existing principle or rule of law or equity” therein contained and that it is a right “derived from” the repealed Act of 1542. In my judgment the safety-net provided by the sub-section preserves the right of a joint tenant to partition of the property, subject to the discretion of the court, notwithstanding the repeal of the statute which created it. Accordingly, I hold that the learned President of the Circuit Court had jurisdiction to make an Order for sale of the matrimonial home in lieu of partition pursuant to the Partition Acts, 1868–1874 as amended.
I have had the benefit of considering the judgment of Murphy J. inO’Dea .v. O’Dea (unreported) which was delivered on the 18th November, 1983. In that case the facts are broadly similar to those under review and the learned Judge based his decision not to affirm the Order of the Circuit Court sanctioning partition of the family home on the ground that the relief sought by the Plaintiff (husband) is discretionary and no evidence had been led which would have enabled the Court to exercise its discretion to grant or refuse an Order for partition. In course of his judgment Murphy J. expressed some doubt as to whether the right of joint tenants to partition created by the 1542 Act has survived the repeal of that statute, but he did not find it necessary to decide that particular issue or to investigate it in depth.
M. (B.) v. M. (A.)
[2003] IEHC 170 (3 April 2003)
Judgment of Mr Justice Michael Peart delivered the 3rd day of April, 2003:
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 re-hearing.
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 plaintiff’s 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 premises, rather than merely a joint owner thereof with his wife.
The plaintiff said that when she asked him to leave it to both of them he did so willingly. She denied that her father had not wanted her to have any share in the house. This is of some relevance and I shall return to it in due course.
According to evidence given by Mr Seamus Foley, an official from Dublin Corporation (now called Dublin City Council), the purchase price at the time of this purchase was £2275. Allowing the discount of 30% (£682.50), this left a net purchase price of £1592.50. This sum was to be discharged over a period at the rate of £3.61 per week. These payments were discharged from the defendant’s wages, and the purchase price was finally discharged in the month of October 1996.
The next significant event occurred in 1981. In that year the plaintiff’s parents wished to return to Ireland and returned to live out the remainder of their lives at the premises. At that time the plaintiff and defendant were living in the premises with their five children, the eldest being at that time about 14 years old, and the youngest being about one year old. The available accommodation at the premises was inadequate to accommodate the plaintiff’s parents, and accordingly it was decided by all concerned that the best solution was to build on an extension to the premises for her parents. The cost of the proposed extension was between ten and eleven thousand pounds. This sum was raised by availing of a Grant from Dublin Corporation of about £3600, together with an additional loan from Dublin Corporation of £4000, the balance being contributed in equal amounts of about £800 (sterling) from each of four of the plaintiff’s siblings. The additional repayments resulting from the additional loan were discharged out of the defendant’s wages. This additional loan was in turn discharged on 28th February 1996.
The extension was duly completed in or about the month of March 1981, and the plaintiff’s parents moved back into the premises.
The plaintiff’s mother died in 1985.
The next significant event is that due to unhappy differences between herself and her husband, she left the family home in August 1989, and went to stay with one of her sisters in the Isle of Man. She left alone, leaving three of her children in the family home with the defendant. One of other two children was living with one of her sisters in England, and another with her sister in the Isle of Man. The plaintiff was not prepared to return to the family home unless the defendant vacated the family home.
The plaintiff says that during the first year after she left, she returned to Ireland on about six occasions, solely for the purpose of seeing her children. During the second year following her departure, it was more difficult to see her children for reasons which were not given in detail, but she instituted custody proceedings which resulted in her gaining custody of the children concerned. Following November 1992, her children lived with her in England. Since that time she has not returned to Ireland, and neither asked for nor received any maintenance from her husband. It appears that in 1995, the plaintiff obtained a Divorce in England from her husband.
She has been unaware of her husband’s domestic circumstances since 1995, but believes that he has been in a relationship with another lady since some time before her children left Ireland to live with her.
The plaintiff’s father died on the 27th July 1991. She came back for the funeral. In a document stated to be an affidavit answering the plaintiff’s Notice for Particulars (arising out of the defendant’s defence in these proceedings), the Defendant says that on the occasion of her father’s funeral, he and the plaintiff had a conversation described as follows by the defendant:
“I asked her what she intended doing about our family home as there was roughly another three years mortgage outstanding. In reply she said angrily that she was in love with the priest and was about to get divorsed (sic) and had no further interest in me or the mortgage and would prefer if I did not get in touch with her again. Therefore I had no contact with her until I heard from her solicitors in this matter.”
This conversation was put to the plaintiff in cross-examination, but she said simply that it did not take place.
In due course a Grant of Probate issued in respect of her father’s Will on the 28th November 1995 to Mr N. T., solicitor, as the lawfully appointed attorney of her brother, D.R.O’B. who resides in Spain. He is the executor named in her father’s Will. It appears that originally, her said brother had appointed the defendant to be the attorney for the purpose of extracting the Grant, but later Mr T. was appointed and proceeded to extract the Grant.
There was some delay in having the title to the premises altered to reflect the terms of the Will, but on the 11th May 2001, Mr T. wrote to the defendant sending him the necessary forms to be signed by him in order to have him and the plaintiff registered as joint owners of the premises under the terms of the Will. It is a fact that some weeks prior to this letter, the plaintiff had commenced these proceedings since she had not been able to obtain the defendant’s co-operation in the sale of the house. She was seeking the sale of the premises and an equal distribution of the net proceeds of such sale.
Correspondence with the defendant to this end had commenced as far back as 16th January 1996. This correspondence went on for some years without resolution, and these proceedings were then pursued in order to have the matter of the sale of the house resolved.
The plaintiff also called Mr P.M., a Private Investigator, who gave evidence of having been instructed by the plaintiff’s solicitor, to call to the premises in order to ascertain if in fact the defendant was living at the premises. Mr M. said that he had been a member of An Garda Siochana, but now operated a private investigation firm, M.I. Limited. He gave evidence of having called to the premises firatly on 22nd January 2000 and again on the 1st April 2001. He said he had called on another occasion, but had not made any note or record of that third call and could not therefore give any evidence other than in respect of the two dates mentioned. He said that on the 22nd January 2000, he called to the premises, and his report of that visit states that when he called there appeared to be three people living at the house, one male and two female, all appearing to be of oriental origin. Some short time later another man who appeared to be Irish emerged from a room off the kitchen. Mr M. said the foreign persons were very pleasant, and when he asked to speak to the defendant, he was told that he was not there, but one of them gave him the defendant’s mobile phone number. Mr M. also asked to speak to a R.T. but they did not know her, and appeared genuine about this. Mr M. says that a check of the premises revealed that a M. and J.T. were living there. Mr M. also says that he rang the house on several occasions in order to speak with the defendant but on no occasion was he there. He also could see no car at the premises that was registered in the defendant’s name.
In his report dated 26th January 2000, Mr M. says that the average rent in the area for a house of this kind would be in the order of about £850 per month. He says that he cannot say for how long the house had been rented out but that certainly it has been rented out to oriental people for the three years preceding his report.
Mr M. was cross-examined, and it was put to him that the fact that there did not appear to be a car outside the premises did not mean that the defendant’s car might not have been parked on the road, but not immediately outside the house. It was put to him that in fact this house does not have its own driveway in which a car could park, but Mr M. thought it had, but could not be adamant about that. He recalled seeing a motorbike in the driveway, but was sure that there did not appear to be a car outside or near the house, and he therefore was fairly sure that there was no car at or near the house which would belong to the defendant.
Mr M. confirmed in cross-examination that the electricity account with ESB was in the defendant’s name. In relation to M. and J.T. referred to in his report, Mr M. said it appeared from the Register of Electors that these names were shown as being of the address of the premises. He had not checked the Register himself, but someone had checked this for him.
In relation to his further visit to the premises on the 1st April 2001, Mr M. provided a report dated the same day, in which he states that when he called to the premises on that date, he spoke to a young woman who said that she had rented the house from the defendant. He asked to speak to the defendant, but the lady said that he did not live there. She said that he called regularly and would be there in fact on the following day. The lady asked for Mr M.’s mobile phone number so that she could get the defendant to call him. Mr M. says that he asked for the defendant’s mobile number, but the lady declined to give it to him, but said she would ask the defendant to phone him. Mr Mullin said that it did not appear that there was any other person living at the house, and that there was no car in the driveway.
This report also states that on the same date he called to a premises in Dublin city, which I understand to be a house owned at the time by Ms. R.T., the defendant’s current partner. His intention was to see if the defendant was residing at that address. However, he established only that there was a lady named W., and that there was no record of the defendant ever having lived there. He also states that neighbours from whom he had made enquiries did not know the defendant.
The defendant delivered a Defence to these proceedings on the 14th May 2001, and an Amended Defence on the 24th March 2002. In these documents the defendants accepts that D.A.O’B. and L.O’B. are the registered owners of the premises, but he denies that they are what is described in the Defence as “the official owners”, on the basis that it is the defendant who has at all times discharged the mortgages on the premises. The defendant claims that he is the official owner. The defendant also denies that on the death of L.O’B., the said D.A.O’B. became the sole legal owner. The defendant also denies Probate has been extracted to the estate of D.A.O’B. as he the defendant is challenging the contents of the Will. The Defendant in his amended defence denies that the plaintiff has or is entitled to any interest in the premises, either legal or beneficial. He also denies having let the premises, and asserts that at all times the premises have been his family home and sole residence. He claims to have an entitlement to the entire beneficial interest in the premises, or such proportion thereof as the Court shall determine. He asserts this on the basis that it has been he alone who discharged the rent and the mortgages on the premises, including the additional mortgage of £4000 obtained to construct the extension to the premises in or about 1981.
In his amended defence, the defendant also claims that the Partition Acts are unconstitutional and fail to protect the defendant’s rights pursuant to the Family Home Protection Act, 1976. At the commencement I ruled that this latter point was not one appropriate to be dealt with on the hearing of this appeal, being raised for the first time in the amended defence delivered on the morning of the commencement of this appeal. The Attorney General had been served with the required Notice under the Rules in relation to the constitutional issue, but having so ruled, I excused the Attorney General from further participation in this appeal.
Evidence on behalf of the defendant:
Ms. R.T. gave evidence that she has been the partner of the defendant for about 9 years. It would appear that her sister is married to the defendant’s brother, and that at some point after the plaintiff went to England, Ms. T. was asked to help the defendant in relation to minding the children who were then living with him, looking after the house. A relationship developed between her and the defendant in or around late 1992. At that stage it appears that she went to live in the premises along with her two children. Up to that time, however, she says she resided in her house in Finglas, and she says that the defendant resided at all times at the premises. She stated that the defendant had never moved into her house. She also said that the premises had never been rented out by the defendant.
In relation to the evidence that was given by Mr M. about finding tenants in the house, and the defendant not being there on the occasions he called, Ms. T. said that on those occasions they must simply have been out at the time. She said that the M. and J. T. who were in the premises were in fact brothers of hers who had come back for a short while from Canada after the funeral in Canada of a family member. They were not tenants. In relation to Mr M. saying that he found tenants of oriental origin in the premises, she said that she had never seen them there and that the house had never been rented out to anybody. In cross-examination, she also said she could not explain Mr M.’s evidence about tenants being on the premises.
The defendant’s brother, A.M. also gave evidence. He stated that he had resided in the United Kingdom since about 1983, but that he used to return to Ireland about twice a year and would stay with the defendant at the premises on those occasions. During the last five years or so, he has been returning more often, perhaps three or four times. On some of these occasions he would stay with the defendant, on others he would stay with another of his brothers. He said he had never seen anybody else living in the house, except the defendant, Ms. T. and her two children. He was not aware if the house had ever been let to tenants, but as far as he was concerned there had never been tenants there.
In cross-examination, the defendant said that while the plaintiff was still living in the premises, he had not stayed there when he came back to Ireland. He also said he had never visited Ms. T.’s house in Dublin, or stayed there.
The defendant gave evidence also. There is no need to set out all of the defendant’s evidence, as much of it simply conforms to the plaintiff’s evidence as to the history of them both coming to live with the plaintiff’s parents, and the arrangement whereby the premises were purchased from the Dublin Corporation, by the mechanism by which it would be done in the names of her parents, since they were the tenants ( and thereby also gain the benefit of the 30% discount on the purchase price), but that he would discharge the repayments to Dublin Corporation. There is not any relevant disagreement as to that transaction, except that the defendant says that he had a discussion with the plaintiff’s father and that her father told him that the house would be his (i.e the defendant’s). He also said that he was never aware that the plaintiff’s father had made a Will leaving the house to the plaintiff and defendant in their joint names.
The defendant also agreed that when it came to building the extension in 1981/82, an additional mortgage had been obtained in the sum of £4000, and that there was also a Grant given on the basis of the plaintiff’s mother’s illness. He disagrees however with the plaintiff’s evidence that four of her siblings each contributed £800 sterling towards the cost of the extension. He thinks it was more like about £800 or £1000 between the four of them.
The defendant also said in evidence that if he had been aware that the plaintiff’s father had made a Will leaving the premises to he and his wife jointly, he would have taken steps to try and change that situation. He said he would not have stayed there paying the mortgage, only to have nothing at the end of it. He said that it was not until he received a letter in 2001 from the plaintiff’s solicitors that he first became aware that the house was left to them jointly. He said that in the divorce proceedings which the plaintiff had commenced in England, there had been no mention of the premises. He was not aware that the plaintiff had a house of her own in England.
He stated categorically in his evidence that he had never rented out the house to anybody. In relation to Mr M.’s evidence about not seeing any car belonging to the defendant on the occasions when he called to the premises in January 2000 and April 2001, the defendant said that in fact he drives a van, and that it may have been parked elsewhere in the vicinity of the house, and that it was a small cul-de-sac and that there were often quite a number of cars parked along the road.
He also said that he had never resided anywhere other than in the premises.
Under cross-examination, the defendant agreed that the premises was the family home of his family and the plaintiff’s parents. He agreed that following the arrangements for purchase in 1971/72, it was the intention that they would reside there, and that on his death, the plaintiff would continue to reside there as her home. He reiterated that he had had a conversation with the plaintiff’s father to the effect that he would make the repayments and that the house would be his, and that the plaintiff’s father had not stipulated that anybody else would own the house. There was, he says, never any suggestion or agreement that the house would be jointly owned. He said that the house would be primarily his but his wife would reside with him, and that she would get it when he died.
The defendant says that by leaving the house to him and his wife jointly, the plaintiff’s father in effect reneged on his agreement with him that the house would be his alone. The defendant was referred to his Reply to Particulars (which is in the form of an affidavit for some reason), wherein he refers to having had a conversation with his wife at the time of her father’s funeral (a conversation which the plaintiff denies took place) in July 1991. The exact quotation from this document is set out earlier in this judgment. He was asked why, if as he contends, the house was his and that he was not aware of anything to the contrary until he received a solicitor’s letter in 2001, he was asking the plaintiff in July 1991 what she intended doing about the family home. He was in some difficulty in reconciling these matters.
He said that he may have stayed at his partner’s house in Dublin on a few occasions, prior to her moving in with him, but never moved into that house.
Legal Submissions:
Mr Roughan B.L made submissions first of all on behalf of the plaintiff. He said that there was not much dispute between the parties as to the relevant facts upon which this case fell to be decided. He said that it was the defendant’s case that there was a resulting trust in favour of the defendant resulting from the fact that it was he who had paid the rent and discharged the mortgage repayments on the premises. However, he said, this was not the case in fact, because the purchase price for the premises took account of a 30% discount on the price arising because of the fact that the plaintiff’s parents had been tenants for more than ten years. While he accepted that the defendant had paid the rent and the repayments, the fact was also that when the extension was built in 1981/82, a Grant had been received on account of the illness of the plaintiff’s mother, and there had been contributions from some of the plaintiff’s siblings. Even if there was a presumption of a resulting trust (which he submitted there was not), that presumption could be rebutted by evidence of the intention of the parties at the time, and he submitted that it was clear from the evidence, including the terms of the plaintiff’s father’s Will that he intended that the premises would be there for the benefit of both the plaintiff and the defendant. This he submitted was also evidence of advancement, and the Court was referred to the decision of Keane J. (as he then was) in the case of J.C.v. J.H.C. (unreported), 4th August 1982. In that case, the parties to the transaction were husband and wife, whereas in this case the parties relevant to the transaction are the plaintiff’s parents, and their daughter and son in law. In relation to the case Keane J. (as he then was) was dealing with, the defendant husband had put up all the money to purchase a house, and the property had been put into the joint names of the husband and his wife. At page 3 of the unreported judgment, Keane J. (as he then was) states:
“Where property is taken in the joint names of two or more persons, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the money. This presumption may however be rebutted; in particular the circumstance of the person into whose name the property is conveyed being the wife of the person advancing the money may be sufficient to rebut the presumption under the doctrine of advancement.”
Shortly thereafter on page 4 of the unreported judgment, the learned judge continues:
“It is clear that the defendant intended the property to be jointly occupied by the plaintiff and himself during their lifetimes but also intended the legal ownership to devolve upon her if he predeceased her. It is quite plain that he intended to give it to her; and that accordingly the property has been held from the beginning and is now held by the plaintiff and the defendant on a joint beneficial tenancy.”
As I have said, this case is not on all fours with the instant case. It might be if the plaintiffs in the present case were Mr and Mrs M., and Mr and Mrs O’B. were defendants, in a claim by the former that the latter in whose name the premises were held, in fact held the premises on a resulting trust for former, since they had made all the payments to Dublin Corporation. However, that is not the case. Nevertheless, the case is of some assistance in relation to intention, but I will deal with that matter at the conclusion of this judgment.
Martin Hayden S.C. on behalf of the defendant submitted that questions about whether there was an advancement as a rebuttal to a presumption of a resulting trust did not arise in this case, since the property was in the names of the plaintiff’s parents.
In contending that there was a resulting trust in favour of the defendant arising out of the transaction in 1972 when he says the defendant alone in effect bought the premises, but in the names of the plaintiff’s parents, by discharging all the repayments to Dublin Corporation until their final discharge in 1996, Mr Hayden is relying firstly on a number of very old cases, namely Dyer v. Dyer (1788) 2 Cox Eq 92; In re A Policy No. 6402 of the Scottish Equitable Life Assurance Society (1902) 1 Ch. 282; and In the Matter of John Slattery (1917) 2 IR 278. It is unnecessary for me to deal individually with these cases, save to say that they endorse the accepted principle, referred to by Keane J. (as he then was) in J.C. v. J.H.C. to which I have already referred, wherein the learned judge stated that where property is taken in the joint names of two or more parties, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the purchase money, a presumption which is capable of rebuttal under certain circumstances, such as, inter alia, advancement or gift. This principle is also set out clearly in Hilary Delaney’s work, Equity and the Law of Trusts, 2nd Ed. at pages 156-157.
Mr Hayden also submits that the alleged contribution to the cost of the extension should be seen by the Court as a buying out by those siblings of their obligation to provide for and assist their parents when they were in England, and not as a gift to the plaintiff to assist in the cost of the extension. He also points to the fact that it was the defendant who continued to look after the plaintiff’s parents until their deaths, after the plaintiff left to live in England. This is a factor, he submits, that ought to be taken into account in the defendant’s favour.
Mr Hayden also submitted that the plaintiff is now seeking to derive a benefit from delay on her part in bringing this claim for partition and sale. In this context he referred to R.F. v. M.F. (1995) 2 ILRM 572 wherein it was held by Henchy J. in the Supreme Court that the fact that the wife in that case had allowed eight years to pass before making any complaint that the transfer of the farm was oppressive or unfair was so tainted with delay as to be inconsistent with her claim that she had acted under undue influence when she executed a transfer of the property in question. That case is a case of undue influence, unlike this case, but Mr Hayden refers to it in relation to the delay on the part of the plaintiff in bringing these proceedings. I shall return to this question of delay in my conclusions.
He submits that in the event that the property is sold and the proceeds divided as the court may decide, the defendant is faced with current house market conditions, compared with those prevailing at and shortly after the death of her father in 1995. Again this is a factor, he submits, to which the court must have regard in exercising its discretion under the Partition Acts. He submits that at the very most, assuming the court decides that the plaintiff has any entitlement to any share in the premises, the plaintiff should be limited to the extent of 30%, being the portion represented by the discount in the purchase price when the premises were purchased from Dublin Corporation in 1972.
Mr Hayden submits that the Court must have regard to the fact that if the premises were to be sold and the plaintiff were to be found entitlement to a joint share in the premises, the effect is that the defendant would not be able to purchase an alternative premises from his share, given his age and present market conditions.
James Dwyer S.C. on behalf of the plaintiff, responded to Mr Hayden’s submissions. He summarised the facts, and submitted that it was clear that the plaintiff’s parents were the tenants of the premises prior to 1972, and that in 1971/1972 it was agreed among the family generally that the premises would be purchased from Dublin Corporation by the plaintiff and the defendant, but that for the reason given in evidence, the house would be bought in the names of the plaintiff’s parents. The fact was that the defendant was the only breadwinner in the marriage of the plaintiff and the defendant, and that it was obvious to all that it would be his wages which would be used to make the repayments. But that cannot be used to exclude the plaintiff from any beneficial interest in the premises, since to do so would be to go against the clear intention of all concerned that the house was being bought so that the plaintiff and defendant could live there with their children, and that on the death of either the plaintiff or defendant, the survivor would have sole ownership. He says that this clear intention is also corroborated by the provisions of the Will executed by the plaintiff’s father in 1977, and which remained unchanged until his death in 1995.
In this regard, Mr Dwyer referred to R.F. v. M.F. (supra) wherein it was held that the equitable doctrine of advancement, as applied to transactions between husband and wife, has the effect that when the husband, at least where the circumstances show that he is expected to provide for the wife, buys property and has it conveyed to his wife and himself jointly, there is a presumption that the wife’s paper title gives her a beneficial estate or interest in the property. Unless the presumption is rebutted by evidence showing a contrary intention on the part of the husband at the time of the transaction, he will be deemed to have entered into the transaction for the purpose of conferring an estate or interest on the wife.
Mr Dwyer submits that the Will speaks from the death of the plaintiff’s father and that from that time the plaintiff was entitled to be registered as joint owner with the defendant. Any delay from that date until 2001 cannot prejudice the plaintiff in his submission. In any event he submits that the defendant has not suffered any prejudice from any such delay, since he was well aware from 1995 that his wife and he had both been left the house under the terms of the Will, and that it was the defendant who had frustrated an earlier resolution of this matter due to his failure to cooperate in the registration by failing to execute the necessary documents when asked to do so by solicitors acting for the plaintiff.
Conclusions:
The first matter I am satisfied on based on the evidence I have heard is that in 1971 it was agreed between Mr and Mrs M., and her parents, Mr and Mrs O’B., that the tenant purchase scheme introduced by Dublin Corporation around that time, should be availed of and that the premises should be purchased at the price stipulated which took into account the discount to which Mr and Mrs O’B. were entitled due to the fact they had been tenants for the required period, which I believe to be not less than ten years. I am also satisfied that, be it correct or not, they were of the belief that this could be done only by the purchase being achieved in the names of Mr and Mrs O’B.
I am further satisfied that the purchase would be on the basis that the repayments should be made by Mr M., but on the basis that he and not Mrs M. was working, but that the intention of Mr and Mrs O’B. was that the house would be bought in this way so that Mr and Mrs M. would be the owners from the O’B.s’ point of view, even if Mr O’B. may have been of the opinion, being that sort of man, that Mr M. would be the owner. I have no doubt that even though he may have been of that view, it was not with a view to his daughter, the plaintiff, being excluded as an owner in any way that would deprive her of any beneficial interest in the premises. It is clear from the evidence that the intention was beyond any doubt that the premises would be the M.s’ family home and that on the death of Mr M., should that occur prior to Mrs M., that she would be the owner of the premises in due course.
Eventually, as we now know, Mr and Mrs M. separated. The reasons do not concern me, except to say that while the prima facie desertion by Mrs M. would, subject to any claim by her that such desertion resulted from any unreasonable behaviour on Mr M.’s part disentitle her from claiming maintenance, it could not, even on the version of events most favourable to Mr M., disentitle her to any pre-existing property rights, and in particular, to any interest she may have had in the premises.
As we know, Mr and Mrs O’B. passed away in the 1980s, Mr O’B. having executed a Will in England in which he left the premises to Mr and Mrs M. jointly. This is consistent with the fact that it was the O’B.s’ intention that the house was in effect being bought from Dublin Corporation, though in the names of the O’B.s, for the benefit of Mr and Mrs M.
It is the defendant’s contention now that since it was he who was discharging the repayments, and did so until all monies had been repaid, including those due on foot of the second mortgage obtained in 1981/82, the premises are in fact his on the basis that his wife provided no consideration. In effect he is saying now that if the purchase had been effected at the time into the joint names of he and his wife, rather than the O’B.s, his wife would be holding her share of the premises on a resulting trust for his benefit, and that therefore she should not be entitled to a beneficial interest therein, even though the premises were left to them both by Mr O’B. Implicit in such a submission is a contention that Mr O’B. was not entitled to leave the premises by his Will either to Mr M. alone or to Mr and Mrs M. jointly, as the O’B.s were holding the premises on a resulting trust for him alone, they having provided no consideration. Leaving aside completely for the moment the fact that the O’B.s had in fact contributed 30% of the consideration by reference to the discount in the price already referred to, and leaving the further matter of the Grant and the contributions from Mrs M.’s siblings in 1982, there is in my view no reality in Mr M.’s contention.
It follows also from Mr M.’s submissions, that if, which he denies, Mrs M. has an entitlement to a joint interest arising from her father’s Will, that there is a presumption of a resulting trust in his favour in respect of her interest. That would imply that the income from which Mr M. paid the repayments was never the family income. The fact is that Mrs M. did not work during the marriage, her job being to be at home to look after the children, and look after the needs of the home.
I conclude from this rather convoluted and difficult set of facts that the O’B.s certainly held the premises in their name on a resulting trust for both Mr and Mrs M. Had Mr O’B. left the premises in his Will to some other party, and had the M.s’ marriage not broken down resulting in a separation and divorce, both Mr and Mrs M. would have been entitled to bring an action to have themselves declared the beneficial owners on the basis of a presumed resulting trust. There is no possible evidence by which the O’B.s’ personal representatives could have rebutted that presumption on the basis either of advancement from the M.s to the O’B.s, or by any evidence of a contrary intention on the part of the O’B.s.
I am also satisfied that Mr O’B. made his Will in the way he did because he knew that the house was in reality belonging to the M.s and that the Will was the easiest way of dealing with the situation that would arise on his death. I do not have to deal with the fact that in his Will at the time he executed it, he ignored the fact that his wife, Mrs O’B., was in fact a joint owner with him of the premises, but it confirms, I suppose, that he was the sort of man who believed the normal thing was for the husband to own the property, but to go any further , as I have said, and conclude that he would not have wanted his daughter to have an interest in the premises, is too far-fetched to be real.
It is not necessary to consider any further the legal authorities to which I was referred in connection with resulting trusts, advancement and so forth. Those concepts are not really relevantly in dispute. I am satisfied that by whatever route one travels in order to unravel the facts of what happened over the years, the result is the same, namely that the plaintiff and the defendant are entitled now to be registered as joint owners of the premises, and that there is no resulting trust arising between the plaintiff and the defendant. Both have a joint interest in the premises, and I will deal later with the respective proportions in which that joint interest ought to held by them.
Having so found, I must then consider the questions which arise under the Partition Acts, since the plaintiff is seeking relief under those Acts so that the premises can be sold, with the proceeds being divided in proportions which the Court would consider just in all the circumstances.
The first thing to be said is that the relief sought by the plaintiff is a discretionary relief.
The Court’s power to order a sale is contained in Section 3 of the Partition Act 1868, which states as follows:
“In a suit for partition, where, if this Act had not been passed, a decree of partition might have been made, then if it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions.”
It is clear from the wording of the section that the Court has a wide discretion in whether it orders a sale of the premises. All relevant circumstances can be taken into account. In addition, when the section states “if it appears to the Court that……… a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them”, it is not just the applicant who must be considered but all those interested in the property. If authority is needed for this, it is found in Drinkwater v. Ratcliffe (1875) LR 20 Eq 533, and Fleming v. Crouch (1884) WN 111.
Section 4 of the same Act gives the Court similar powers as follows:
“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, individually or collectively, 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 or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.”
In the latter section the Court also has a wide discretion, except that a sale is mandated by the words “the Court shall, unless it sees good reason to the contrary, direct a sale of the property” (my emphasis). The onus of establishing a good reason to the contrary rests on the party opposing the application. In this regard see Pemberton v. Barnes (1871) LR 6 Ch App 685.
It would appear that Section 4 is the section most appropriate to the present application, since the Court is being requested to make an order by a “party or parties interested, individually or collectively to the extent of one moiety or upwards.”
It follows therefore that the defendant in opposing the application has the onus of establishing that there is a good reason to the contrary. In this regard Mr Hayden has submitted to the Court that if a sale were to be ordered and a division of the proceeds made, the defendant, bearing in mind the current property market and his age (in the context of his ability to obtain a loan) and the circumstances generally which include the fact that the plaintiff has a house in England, would effectively be left without a home. It is also a factor that the premises were, prior to the separation of the parties, the family’s family home.
I am satisfied that the defendant has discharged that onus in the present case and that there is a good reason why the court should not order the sale of the premises. Even if Section 3 were the appropriate section for this application, I am satisfied that the Court, in the exercise of its discretion, ought not to direct a sale of the premises in all the circumstances.
In my view it is also necessary to address the matters in issue in this case in the light of the provisions of the Family Home Protection Act, 1976 (hereinafter referred to as “the 1976 Act”), although Counsel has not addressed me specifically in relation to the implications of the 1976 Act on the question of relief being claimed under the Partition Acts.
It has been decided that any rights a party may have to seek relief under the Partition Acts must be tempered by the effect of the1976 Act, Section 4 of which provides that the court may dispense with the consent of a spouse if it is unreasonably withheld. In the present case, if this court was being asked to dispense with the defendant’s consent to a sale, as being unreasonably withheld, it would not be prepared to do so in the circumstances of this case, as it would not have any sufficient evidence from which to conclude that any withholding of consent is unreasonable.
Section 2(1) of the 1976 Act defines a family home as “primarily meaning a dwelling in which a married couple ordinarily reside. The expression comprises in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before leaving”. It is clear that the premises in this suit come within this meaning.
In the case of AL v. JL dated 27th February 1984, (unreported), Finlay P. (as he then was) was dealing with a very similar set of facts as this case. In that case, it was intended that a family home be purchased in joint names, but in fact the house was put into the name of the husband only, the wife being at the date of purchase under the age of majority. Unhappy differences arose and the wife left the family home to live with another man. During the marriage they had both contributed to a joint pool out of which repayments were made on the mortgage, but following the wife’s departure the husband alone continued the repayments. The husband maintained that the resulting trust upon which the husband in that case held the wife’s interest was a conditional one, namely conditional upon the maintenance of the marriage relationship, and that by leaving her husband, the trust was thereby avoided. The learned President did not agree. At page 4 of the unreported judgment, the learned President (as he then was) states as follows:
“It was the clear intention of these parties that this house should be purchased jointly by them and in my view the events which happened and the circumstances under which it was purchased in the sole name of the husband when viewed through equitable principles must be given the same force and effect as if their intention had been carried out in the first instance, as if they were both grantees under the Deed of Conveyance of an equal share in the house………There is not, in my opinion, in the general principles of equity room for a voidable or conditional trust depending upon the maintenance of the marriage nor can the courts investigate the true reasons for the unfortunate break-up of the marriage in order to ascertain the reality of the beneficial ownership of two people who agree jointly to purchase a house and make each of them contributions towards the redemption of mortgages standing upon it. I am satisfied that the wife is entitled to a 50% share or one half share in the equity of redemption of these premises.”
The facts are sufficiently similar to the present case to make this decision relevant in this case. I have already concluded that Mrs Murphy made an indirect contribution to the household by her involvement at home in the rearing of the children and her running the house, as it were, and this replaces the reference in the above case to both the husband and the wife contributing to a joint pool from which the mortgage repayments were made. I note also that in AL v. JL, there were no children in the marriage.
Finlay P. went on in that case to find that while in the period before the wife left there was a clear entitlement to a 50% joint interest, the husband was entitled to some credit in respect of the period after which the wife left, as he continued to make the repayments on the mortgage from his sole funds. The parties in that case had married in 1975 and the wife had left in 1980. Dealing with the question of what relevantly comprised the equity of redemption in which the wife had a 50% interest, the learned President (as he then was) stated as follows:
“In my view the equity of redemption in these premises as of February 1980 consisted of the then gross market value of the premises, less the amount still outstanding to Irish Nationwide Building Society………Having determined the relationship in terms of percentage between the total amount outstanding on the mortgage as of February 1980 and the gross market value of the premises, it seems to me that the precise form of declaration which I must then make is to declare the wife entitled to one half of the percentage constituting the equity of redemption at that time. To take as a simple example, if the amount outstanding on the mortgage at that time constituted 10% of the gross value of the premises, the wife would be entitled to a 45% share in the ownership of the house.”
Interestingly, the learned then President went on:
“With regard to the claim for a sale of the premises pursuant to the Partition Acts, the position appears to me to be as follows. Having regard to the provisions of the Family Home Protection Act, 1976 in the absence of an agreement between the parties, an order for sale cannot in my view be made under the Partition Acts unless the court is also satisfied that it should dispense with the consent of the non-agreeing spouse under Section 4 of the 1976 Act”.
On the facts of that case, he was not so satisfied. In O’D v. O’D, 18th November 1983 (unreported), Murphy J. had adopted a similar attitude to the impact of the 1976 Act on the question of relief being sought under the Partition Acts in respect of a family home. I respectfully adopt that reasoning for the purpose of the present case.
In the present case, I have already found for the reasons stated that the parties are entitled to be registered as joint owners of the premises. For the purpose of deciding the respective proportions of that interest, the methodology adopted by Finlay P. (as he then was) in AL v. JL seems entirely appropriate for the purpose of doing justice between the parties in this case, given that Mrs M. left the family home in August 1989, after which time Mr M. continued to make the repayments, and Mrs M. was of course no longer at the premises to continue her indirect contribution to the household budget.
It is my view that a valuation of the premises as of August 1989 should be obtained from an independent valuer, and that the amounts outstanding to Dublin Corporation on both mortgages be ascertained as of that date. The court can then calculate what percentage proportion of the market value is represented by the equity of redemption, and will declare the ownership of the premises to be divided on a 50-50 basis of that percentage proportion. I have already found that the O’B.s were entitled to the 30% discount off the purchase price in 1972, and that I am satisfied the plaintiff’s siblings made a contribution of £3200 Sterling to the extension, and that a Grant of £4000 was also obtained derived from the illness of the plaintiff’s mother. Without being necessarily mathematically accurate to the last pound, I am satisfied that all of these matters mean that a 50-50 split between the parties is a fair one, but based on the value of the equity of redemption as at August 1989. As I have said already, this conclusion amounts to the same conclusion I reached when finding that the parties were entitled to be registered as joint owners, there being no resulting trust existing for the benefit of the defendant in respect of the plaintiff’s share, save with the slight modification arising from the methodology emanating from AL v. JL as to the value of the equity of redemption of the premises.
I should just add that I am not satisfied that the evidence is sufficiently clear in respect of the letting of the premises by the defendant after the plaintiff left, in order to make any finding in relation that issue.
Finally, the defendant has said that the plaintiff has delayed in bringing this application and that she ought not to benefit from her delay. I am satisfied that the appropriate way to look at any delay is to see whether the defendant has suffered any prejudice from the delay, even if I were to find the plaintiff to have been guilty of such. I am not so satisfied in the light of my findings and the decision I have come to as to the method of resolving the issues in this case.
I therefore refuse the relief sought by the plaintiff under the Partition Acts, and I also refuse the declaration sought by the defendant that he be entitled to be declared the owner of the entire beneficial interest in the premises. I therefore set aside the order of the learned Circuit Court judge made on the 26th June 2002, and I will adjourn this matter for a period to be agreed with Counsel, at which time I will finalise the order I propose making, when I have received the information I have mentioned, and after I have heard submissions from Counsel as to whether the parties should be registered as either as joint tenants or as tenants in common, in the absence of any agreement being reached between the parties in that regard.