FAMILY PROPERTY
• Disputes – close interpersonal relationships mean there will probably be one
• Property in context of these disputes between personal relationships
• What’s a family, what’s a home, is a family home different to a shared home etc
• What happens to the property in a divorce or judicial separation.
• Say a wife contributes by way of rearing children or being a stay at home mother, the house
is in the husbands name, and then he uses the house to secure a mortgage and defaults –
does the wife have an equitable interest in the home by way of the work she has done
there? Is it important that they are married? If she does have that equitable interest, where
does it come in, in relation to the default? What about notice etc…or same sex marriage?
Nature of the home? What if the husband obtained consent? What if wife made
contributions towards the mortgage payments in monetary terms?
The Constitutional Context
➢ Article 41.1:
- The family is the natural and fundamental unit of society
- Inalienable and imprescriptible rights
- Necessary basis of social order
- Indispensable to the welfare of the state
- Protected accordingly
- Protect is against attack
- Guard with special care
- Case law states that - The Family, is a family based on marriage.
- Marriage act 2015 – not heterosexual marriage only.
- Civil partnerships?
THE ECHR
➢ Article 8.1
- Everyone has the right to protect his home and his correspondence
➢ 8.2
- No interference by a public authority…
• Very factual approach
Gillham?...
- A rent in property could constitute a home for the purposes of the home in the ECHR.
Buckley v UK
- Factual test as to whether or not something is a home, depending on existence of
consistent and continuous links.
➢ Article 14
- The enjoyment of the rights and freedoms…shall be secured without discriminations on
any grounds…lists a lot of specific grounds and then says, ‘or any other status’.
, • However, the effectiveness could be reduced as article 8 has exceptions which fall under
what is necessary in a democratic state, however the ECHR tends to give 14 a narrow
interpretation as it would reduce effectiveness of aim of article 8.
• Not part of our law
• If there is a conflict, the Irish constitution prevails.
The Matrimonial Home: Equity Based on Contributions
• A spouse who has contributed to the purchase price
- Equitable interest.
• Early-mid 20th century, there were only heterosexual couples. Home held in name of the
husband
• Husband more likely to be engaged in employment outside the home
• Domestic woman.
The deserted wife’s equity: the law used to recongise certain rights of the wife: accommodation,
shelter or roof over her head, and a corllarly of this was that a husband had a duty to ensure
that she had accommodation.
• This equitable interest allowed her to take legal action if the husband jeopardised or
threatened her right of accommodation
- The right was a PERSONAL right and not a proprietary interest
- This means it cannot be enforced against a third party.
- Property rights can
Other wives rights:
1. Direct contributions
2. Indirect contributions
DIRECT
• Spouses A and B – B is the husband, and is the main earner and is gpign to pay for most of
the house. If A contributes directly to the purchase of the house – deposit, lump sum,
mortgage…any monetary direct way.
• The other spouse holds the title on trust as tenants in common in equity for BOTH of them
• The shares is proportionate to her contributions – her equitable share will be proportionate
to her monetary contribution.
• Not many restrictions on how her direct contribution made
- Resulting trust in proportion to that amount
• A entitled to equitable share in ownership as a result of the contribution she has made,
which is why it is called a resulting trust
HD v JD
Family house purchased in husbands name. wife had earnings from a job. Paid into family account,
which the mortgage payments were extracted from.
• Disputes – close interpersonal relationships mean there will probably be one
• Property in context of these disputes between personal relationships
• What’s a family, what’s a home, is a family home different to a shared home etc
• What happens to the property in a divorce or judicial separation.
• Say a wife contributes by way of rearing children or being a stay at home mother, the house
is in the husbands name, and then he uses the house to secure a mortgage and defaults –
does the wife have an equitable interest in the home by way of the work she has done
there? Is it important that they are married? If she does have that equitable interest, where
does it come in, in relation to the default? What about notice etc…or same sex marriage?
Nature of the home? What if the husband obtained consent? What if wife made
contributions towards the mortgage payments in monetary terms?
The Constitutional Context
➢ Article 41.1:
- The family is the natural and fundamental unit of society
- Inalienable and imprescriptible rights
- Necessary basis of social order
- Indispensable to the welfare of the state
- Protected accordingly
- Protect is against attack
- Guard with special care
- Case law states that - The Family, is a family based on marriage.
- Marriage act 2015 – not heterosexual marriage only.
- Civil partnerships?
THE ECHR
➢ Article 8.1
- Everyone has the right to protect his home and his correspondence
➢ 8.2
- No interference by a public authority…
• Very factual approach
Gillham?...
- A rent in property could constitute a home for the purposes of the home in the ECHR.
Buckley v UK
- Factual test as to whether or not something is a home, depending on existence of
consistent and continuous links.
➢ Article 14
- The enjoyment of the rights and freedoms…shall be secured without discriminations on
any grounds…lists a lot of specific grounds and then says, ‘or any other status’.
, • However, the effectiveness could be reduced as article 8 has exceptions which fall under
what is necessary in a democratic state, however the ECHR tends to give 14 a narrow
interpretation as it would reduce effectiveness of aim of article 8.
• Not part of our law
• If there is a conflict, the Irish constitution prevails.
The Matrimonial Home: Equity Based on Contributions
• A spouse who has contributed to the purchase price
- Equitable interest.
• Early-mid 20th century, there were only heterosexual couples. Home held in name of the
husband
• Husband more likely to be engaged in employment outside the home
• Domestic woman.
The deserted wife’s equity: the law used to recongise certain rights of the wife: accommodation,
shelter or roof over her head, and a corllarly of this was that a husband had a duty to ensure
that she had accommodation.
• This equitable interest allowed her to take legal action if the husband jeopardised or
threatened her right of accommodation
- The right was a PERSONAL right and not a proprietary interest
- This means it cannot be enforced against a third party.
- Property rights can
Other wives rights:
1. Direct contributions
2. Indirect contributions
DIRECT
• Spouses A and B – B is the husband, and is the main earner and is gpign to pay for most of
the house. If A contributes directly to the purchase of the house – deposit, lump sum,
mortgage…any monetary direct way.
• The other spouse holds the title on trust as tenants in common in equity for BOTH of them
• The shares is proportionate to her contributions – her equitable share will be proportionate
to her monetary contribution.
• Not many restrictions on how her direct contribution made
- Resulting trust in proportion to that amount
• A entitled to equitable share in ownership as a result of the contribution she has made,
which is why it is called a resulting trust
HD v JD
Family house purchased in husbands name. wife had earnings from a job. Paid into family account,
which the mortgage payments were extracted from.
