Presently in Ireland legislation1 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 needed3 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 trust4 was applied to matrimonial property disputes5 in C v C6. 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 McC7 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 TD8 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 interest9.
Thirdly, work done in the home is not recognised by the resulting trust. In L v L10 the wife had not made any financial contributions to the mortgage or a family fund, but had spent most of her time running the household and looking after the children of the marriage. Finlay CJ held that to extend the doctrine of the resulting trust to situations where the non-owning partner had made no financial contribution, would be to introduce a new doctrine and hence be 'usurpation by the courts of the function of the legislature'11.
In N v N12 however Finlay CJ did extend the resulting trust to a situation where similarly there had been no financial contribution by the non-owning partner. He stated that the activities of a wife in managing and maintaining bed-sitter apartments belonging to her husband's business gave rise to a beneficial interest in the family home for her. This highlights inconsistency in the Irish approach13. The need for legislative reform The resulting trust is only applicable in the purchasing of property and so cannot take into account improvements and work in the home on separation of cohabitees.
Therefore at present injustice will arise if a cohabitee in a long stable relationship forgoes a career to work in the home and bring up children. In L v L Finlay CJ prevented the expansion of the doctrine of the resulting trust to deal with this problem hinting that any solution must come from the legislature14. The courts of England, Australia, Canada and New Zealand have addressed the same situation. Each has expanded the doctrine of trusts in a different way to enable them to redistribute property taking into account a wide range of factors including work in the home15.
Whilst nothing can be gained from these innovations in light of L v L, the ultimate lesson from these jurisdictions may be that each of them has either implemented or are considering legislation in this area16. If the need for legislation and the lack of alternatives is clear, the question must be asked: why do we not have such legislation? The answer is not legal, but political17, and not the focus of this essay. Nonetheless the need for such legislation is compounded by the recent increase in cohabitation. Cohabiting couples accounted for 8. 4% of all family units in 2002 compared with 3. 9 % in 199618.
The purpose of the remainder of this essay is to show the weakness of any legal arguments against legislative reform and to draw on the experience of other jurisdictions in analysing what a suitable form of legislation may be. Anticipated opposition to reform In Article 41. 3. 119 of the Irish Constitution the State promises to protect the institution of marriage against unjust attack. It is likely that if legislation were proposed to amend the above situation, opposition would be launched in this regard. 20 It might be argued that giving cohabitees rights similar to those of married couples would undermine the institution of marriage.
However it is not being suggested here that cohabitees should be given similar rights to spouses21. Marriage is an institution of immense value to society and to give cohabitees the same rights and obligations as married couples would undermine it. The legislation proposed would merely operate to mitigate unfairness on separation of certain cohabiting couples by looking to past contributions. This is a far cry from maintenance obligations that would be imposed on a financially dominant spouse who had agreed to care for his/her partner 'til death do us part'.
It may still be argued that giving cohabitees any rights in legislation would undermine the institution of marriage. In a practical sense this may be true if the legislation caused couples to cohabit rather than marry. This seems implausible from the perspective of either partner. For the financially dominant partner the prospect of losing property may make cohabitation less attractive than at present. Even if the financially weaker partner could influence the relationship and did so with separation entitlements in mind, surely they would choose marriage rather than cohabitation.
In any event it is unlikely that either partner will make such a decision based on legal provisions for separation. An opponent to the proposed legislation may still argue that whilst the legislation would not give rise to an increase in cohabitation it would simply undermine the status and esteem of marriage. Such an argument would be weak because various statutes in Ireland already recognise cohabitees22. In this regard the English Law Society state that it would 'surely be an unfortunate reflection on the importance of marriage if … an alternative would undermine it'.
They are also of the opinion that a public debate regarding the defining of cohabitees' rights may actually enhance the importance of marriage23. The proposed legislation may arguably subject cohabitees to legal rules they had chosen to avoid. The response to this is that the laws role in this area is merely to protect the vulnerable who have cohabited and made contributions without any thought for the legal consequences. If cohabitees having addressed the issue wanted to avoid such consequences they could make an agreement, in which case the proposed legislation need not operate.