Family Home


Besides maintenance, the subject of the “family home” is probably the issue of most concern to spouses in any divorce or separation. The courts accept that on separation it will not be possible for the spouses to live together and that proper and secure accommodation should, where practicable, be provided for a dependent spouse and any dependent child of the family.

Who remains in the family home or receives possession of it may be a matter of already established law, it may be based on the agreement of the parties or it may be the outcome of court action. In many States of America for instance there is a “community property” system based on the notion that all property accumulated by the spouses during marriage (other then by gift or inheritance) is owned jointly . Ireland however has a system based on the notion that each spouse owns what he or she has acquired. Ownership depends on legal title or contribution, who paid for the property or whose name is registered on the deed will decide ownership. Where the property is jointly owned both the husband and the wife own all the property. If one dies the surviving spouse owns all the property and the deceased is not entitled to will his share away as there is technically and legally no “share”. On separation where the home is jointly owned it can be sold and the proceeds divided.

When granting a decree for judicial separation under The Judicial Separation and Family Law Reform Act, 1989 (as amended by the Family Law Act, 1995) or a decree for divorce under the Family Law (Divorce) Act, 1996 the courts have wide discretionary powers to, decide which spouse will occupy the family home to the exclusion of the other, decide whether the family home will be sold and how the proceeds will be divided, make a determination in relation to ownership of any property, make a protection order to safeguard the home and contents or an order to partition the property.

The courts have made certain determinations on ownership of the family home and have referred to available legislation. In the High Court case D. (C.) v. D. (W.) [1997] IEHC 23 (5th February, 1997) Mrs. Justice McGuinness reflected on case law in reference to direct and indirect financial contributions by spouses in acquiring a beneficial interest in matrimonial property. In the case referred to above which, had nothing to do with separation or divorce but was to do with the bank claiming possession of lands, the wife applied for title under Section 12 of the Married Women's Status Act, 1957. The relevant sections are as follows:

“Section 12 (1) This section applies to the determination of any question arising between husband and wife as to the title to or possession of any property.

Section 12 (2) Either party or any person concerned may apply in a summary way to the High Court or (at the option of the applicant irrespective of the value of the property in dispute) to the Circuit Court to determine the question and the court may make such Order with respect to the property in dispute and as to the costs consequent on the application as the Court thinks proper”.

Reference was made how the case law stemmed from Heavey -v- Heavey [1974] and C. -v- C. [1976] and developed through the law of resulting and constructive thrusts where it was examined again in W. –v- W. [1981] .

In C. -v- C. it was stated “When the matrimonial home is purchased in the name of a husband, either before or after a marriage, the wife does not become entitled, as wife, to any share in its ownership either because she occupies the status of wife or because she carries out household duties. In many cases, however, the wife contributes to the purchase price or mortgage instalments . Her contributions may be either by payment to the husband of moneys which she has inherited or earned, or by paying the expenses of the household so that he has the money which makes it possible for him to pay the mortgage instalments. Domestic arrangements in relation to the payments of debts or the sharing of expenses are almost always informal and the parties do not make agreements which have that precision which is necessary to make them enforceable as contracts in a court of law. When there is an agreement between them as to the ownership of the house which is in the husband's name only, the Court will enforce it; but the number of cases where this happens is small. The principals derived from the last century (when married women did not earn and when any property they had was usually settled) are of little assistance in determining the ownership of the matrimonial home when the wife has made contributions towards its purchase or towards the repayment of the mortgage instalments . Trying to infer what was the implied agreement which arose when payments were made or expenses paid by a wife is a futile task because, when the spouses are living happily together, they do not think of stipulating that payments by one of them are made to acquire a share in the matrimonial home or furniture.

I think that the correct and most useful approach to these difficult cases is to apply the concept of a trust to the legal relationship which arises when a wife makes payments towards the purchase of a house, or the repayment of the mortgage instalments, when the house is in the sole name of the husband. When this is done, he becomes a trustee for her of a share in the house and the size of the share depends upon the amount of the contributions which she has made towards the purchase or the repayment of the mortgage”.

In W. –v- W. it was stated “Where a wife contributes by money to the purchase of a property by her husband in his sole name in the absence of evidence of some inconsistent agreement or arrangement the court will decide that the wife is entitled to an equitable interest in that property approximately proportionate to the extent of her contribution as against the total value of the property at the time the contribution was made…

Where a wife contributes either directly towards the repayment of mortgage instalments or contributes to a general family fund thus releasing her husband from an obligation which he otherwise would have to discharge liabilities out of that fund and permitting him to repay mortgage instalments she will in the absence of proof of an inconsistent agreement or arrangement be entitled to an equitable share in the property which had been mortgaged and in respect of which the mortgage was redeemed approximately proportionate to her contribution to the mortgage repayments: to the value of the mortgage thus redeemed and to the total value of the property at the relevant time.

Where a wife expends monies or carries out work in the improvement of a property which has been originally acquired by and the legal ownership in which it is solely in her husband, she will have no claim in respect of such contributions unless she established by evidence that from the circumstances surrounding the making of it she was led to believe (or of course that it was specifically agreed) that she would be recompensed for it. Even where such a right to recompense is established either by an express agreement or by circumstances in which the wife making the contribution was led to such belief it is a right to recompense in monies only and cannot and does not constitute a right to claim an equitable share in the estate of the property concerned”.

The Supreme Court approved these principals in the case of McC. –v- McC. [1986] where it was stated that:

“When the wife's contribution has been indirect (such as contributing, by means of her earnings, to a general family fund) the Court will in the absence of any express or implied agreement to the contrary, infer a trust in favour of the wife, on the grounds that she has to that extent relieved the husband of the financial burden he incurred in purchasing the house”.

The Supreme Court again approved this approach in N. (E.) –v- N. (R.) [1992].

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