From this it is clear that if a partner makes indirect contributions of a financial nature in order to allow the spouse to carry on making mortgage repayments they are entitled to a proportionate share in the property. This is a sensible approach and is quite fair as it takes into account that most spouses will not think of making an agreement as to the affect of the contributions. I am now going to look at the British approach and see how it differs to the approach taken in Ireland. England, Indirect Contributions. The law in England relating to indirect contribution has become a lot more restrictive through out the years.
The doctrine of "family assets" was created by the Court of Appeal in the late 1960's. This was described by Lord Denning as fallows10. "Where a couple by there joint efforts, get a house and furniture, intending to be a continuing provision for them for there joint lives, it is the prima facie inference from there conduct that the house and furniture is a 'family asset' in which each is entitled to an equal share. It matters not in whose name it stands: or who pays for what: or who goes out to work and who stays at home.
If they both contribute to it by there joint efforts, the prima facia inference is that it belongs to both of them equally: at any rate when each makes a financial contribution which is substantial. " This was questioned by the House of Lords and was rejected as it was found that Section 17 of the Married Women's Property Act on which lord Denning relied upon was purely procedeural.
This has lead to a much more restrictive approach being put in place, although it was a some what gradual change, as during the late eighties in cases such as Burns v.Burns12 and Grant v. Edwards13 the courts took an approach similar to the Irish, but this all changed in the case of Lloyds Bank v. Rosset14, although founded on the same principles of common intention and detriment, was considerably more restrictive and seems to have set a fairly uncompromising precedent in this area. This case brought in the requirement that there must have an inference which can be drawn from the parties conduct, prior to the acquisition of the property, or exceptionally afterwards.
In the case of Hammond v. Mitchell15 this method was applied and it was established that. "Such a finding of agreement could only be based on evidence of express discussion between the partners and once this was established it would be necessary for the partner asserting the claim to the beneficial interest to show that he or she acted to his or her detriment or significantly altered his or her position in reliance on the agreement in such a manner as to give rise to the constructive trust.
This approach is very restrictive and I believe could lead to unfair decisions in the court, as it is very possible that a plaintive could have paid a very large amount of indirect contributions, but without an express agreement they could be entitled to nothing. From this it would certainly appear that the approach taken in Ireland is a lot fairer and more consistent. Possible improvements. There have been several approaches taken in different jurisdictions and it is important to briefly look at these in order to determine if these remedies would be beneficial in Ireland.
The Canadian Unjust Enrichment approach, relies on a constructive trust theory, and is best summarised in the words of Dickson J17. "For the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason, such as a contact or disposition of law for Enrichment". The Australian 'unconscionability' doctrine is very similar to Lord Denning's new model. Which is of no use to the idea of improving the system. But in New Zealand the reasonable expectations doctrine was created.
Although similar to the Canadian approach it is still worth mentioning. In Daly v. Gilbert. 18 The defendant had made it clear that she was unwilling to share the ownership of the disputed property. None the less her partner made several contributions in the form of labour materials, and carpeting etc. Hammond J. held that, while there had been no "reasonable expectation" of an interest in the property, it was nonetheless possible for the claimant to obtain a monetary remedy under the law of unjust enrichment. He upheld the claim in relation to the building work but not the carpet and curtains.
In conclusion I feel the Irish approach is far superior to the English in a lot of ways, and reform is needed more so in that jurisdiction, possibly an application of the reasonable expectations doctrine or possibly a contribution from the Irish approach would lead to more fairness of the approach in England.
Books consulted Equity and the Law of Trusts in Ireland – Hilary Delany Equity and the law of Trusts – Hanbury Equity and Trusts 5th edition – T. O'Neill Kiely Murdoch's Dictionary of Irish Law – Henry Murdoch Griffith College FE1 Equity and Trusts law notes.