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The Rights Of Cohabitees Essay

4397 words - 18 pages

The Rights of Cohabitees

Presently in Ireland legislation[1] empowers the court to redistribute
the property of a married couple on separation. When assessing
redistribution the court is entitled to look at a number of factors
including 'any contribution made…. by looking after the home or caring
for the family'[2]. The effect of this legislation is that a spouse
who is divorced after 20 years working in the family home and bringing
up children will have provision on separation. However if the person
in question never got married they will get nothing, unless they have
made some financial contribution during the relationship.

Whilst equity may alleviate some of the injustices arising when
cohabitees separate it will not provide a remedy in all situations
where fairness requires one. The purpose of this essay is to show that
legislative reform is needed[3] with respect to cohabitation and that
this would not undermine the institution of marriage. I will look at
legislation and proposals for reform in other jurisdictions and then
suggest a possible model for Irish reform.

Inadequacies of Irish law

The equitable doctrine of the resulting trust[4] was applied to
matrimonial property disputes[5] in C v C[6]. Kenny J held that if a
wife has made direct financial contributions to the purchase price of
a house or its mortgage repayments, then the husband becomes a trustee
for her of a share in the house proportionate to the size of such
contributions. A non-owning cohabitee today who has made direct
financial contributions to the purchase or mortgage of a house could
rely on this case to obtain a beneficial interest in the property on
separation.

The ambit of the resulting trust was expanded in McC v McC[7] when the
Supreme Court held that if a wife makes financial contributions to a
'general family fund', in the absence of any express or implied
agreement to the contrary, the court will infer a resulting trust in
her favour. Whilst the resulting trust may thereby alleviate
unfairness for the cohabitee who has made indirect financial
contributions its inadequacy is evident in this case. The wife, having
contributed significantly to the cost of the first family home was
given no beneficial interest in the second. This was because the
resulting trust is only effective in respect of the purchasing of
property.

The consequent unfairness of this is shown in 3 instances. In NAD v TD[8]
the wife had contributed over one-third of the cost of building a
family home on the husband's property but a resulting trust could not
be applied in her favour because the husband had always owned the
legal and beneficial interest in the property.

Secondly, improvements on the home carried out by one party do not
give rise to any beneficial interest[9]. Thirdly, work done in the
home...

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