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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (B.) v. M. (A.) [2003] IEHC 170 (3 April 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/170.html Cite as: [2003] IEHC 170

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Record No. 2002 No. 240CA

THE HIGH COURT CIRCUIT COURT APPEAL

Between:

B.M.

Plaintiff/Respondent

And
A.M.

Defendant/Appellant

Judgment of Mr Justice Michael Peart delivered the 3^rd day of April, 2003:

By Equity Civil Bill dated 4^th April 2001, the plaintiff commenced proceedings in which she seeks the following reliefs:

1. An order for the sale of premises (hereafter referred to as "the premises"), pursuant to the Sections 3 and 4 of the Partition Act, 1868 as amended by the Partition Act 1876;

2. An order directing that all necessary accounts and enquiries be taken as to the rents and profits received by the defendant arising out of his occupation of the premises and leasing of same up to the date of judgment herein;

3. an Order assessing the amount of interest due to the plaintiff in respect of her share of the rents and profits from the premises;

4. An order for the division of the net proceeds of sale between the parties hereto in such proportion as to this Court may seem just and proper;

5. An order giving directions concerning carriage of sale and all ancillary directions;

6. Such further and other relief as to this Honourable Court shall seem fit;

7. The costs of these proceedings.

This matter came before the Circuit Court on 26^th June 2002, and the learned Circuit Court Judge made an order that the premises be sold by public auction, and that the net proceeds be divided as to 40% thereof to the defendant, and as to 60% thereof to the plaintiff, and he made certain ancillary orders in relation to the sale. The learned Circuit Court Judge divided the net proceeds of sale in the way he did in order to take into account the rent received by the defendant for a number of years and also the costs of the proceedings. This appears from the Circuit Court Order dated 26^th June 2002.

It is against this Order that the matter comes before this Court on appeal by way of re-hearing.

The background to the dispute between the parties arises against the following background facts.

The premises were built by Dublin Corporation in the 1940s, and thereupon the plaintiff's parents went into occupation of the premises as tenants of the Dublin Corporation. They resided there until they each went to England in 1966 and 1968 respectively. Having moved into occupation of the premises, they raised their six children in the premises, including the plaintiff.

The plaintiff and the defendant were married in 1966. For the first couple of months after their marriage, they lived in other rented accommodation, but in 1966 they moved into the premises the subject of these proceedings, and lived there as husband and wife. It was upon her father's leaving to seek work in England, that the plaintiff and her husband moved back into the premises. Her mother was living there on her own, and it seemed a sensible arrangement that the plaintiff and the defendant should cease renting separate accommodation and that they should move into the premises with the plaintiff's mother.

The rent payable to Dublin Corporation was in the order of about £2 per week. The plaintiff did not work outside the home after her marriage, so that the defendant was the sole breadwinner. The arrangement apparently arrived at was that after they moved into the premises, the plaintiff and defendant would pay the rent to Dublin Corporation. It is a fact that being the sole breadwinner at all material times, the rent was paid from the defendant's wages. The plaintiff gave evidence that it was she who actually paid the rent, but from her husband's wages.

The plaintiff's mother moved to England to join her husband in 1968.

The plaintiff and defendant had five children while living in the premises. Their first child was born in 1967, and the others were born respectively in 1968, 1970, 1978 and 1980.

In the early 1970s, perhaps around 1970/71, Dublin Corporation introduced a tenant purchase scheme, so that tenants could purchase the premises from Dublin Corporation. The plaintiff and defendant wanted to avail of this scheme, but the fact is that they were not the tenants themselves, and would not therefore be in a position to avail of the 30% discount on the purchase price which was available to tenants who had been in occupation as tenants for more than 10 years. It was therefore arranged that the premises would in fact be purchased by the plaintiff's parents, but that the plaintiff and defendant would actually discharge the repayments under the Transfer Order. The plaintiff says that this way of proceeding was in fact suggested by an official of Dublin Corporation. At any rate, this arrangement was put in place, and the plaintiff's parents were then recorded on the Land Certificate, City of Dublin, as full owners, subject to the charge on the folio in respect of the outstanding purchase monies.

It is of relevance to note at this stage that while in England, the plaintiff's father, in 1977, made a Will with an English solicitor, in which he left the premises to the plaintiff and the defendant jointly. It is contended by the defendant that it was in fact the plaintiff's father's intention originally to leave the premises only to him, and not to the parties jointly. The plaintiff said in her evidence that her father was by nature rather patriarchal in his attitudes and would have automatically thought that the house should be in the husband's name only, but that when she asked him to leave it to them jointly, he did so. It was put to the plaintiff in cross-examination that it was clear that her father had wanted to leave the house only to the defendant. The plaintiff did not agree and said it was just that her father thought in terms of property being in the husband's name, because he was an old-fashioned type who thought like that. Indeed some corroboration for this can be gleaned from the terms of her father's Will, which seems to be worded on an assumption that her father considered himself to be the sole owner of the premises, rather than merely a joint owner thereof with his wife.

The plaintiff said that when she asked him to leave it to both of them he did so willingly. She denied that her father had not wanted her to have any share in the house. This is of some relevance and I shall return to it in due course.

According to evidence given by Mr Seamus Foley, an official from Dublin Corporation (now called Dublin City Council), the purchase price at the time of this purchase was £2275. Allowing the discount of 30% (£682.50), this left a net purchase price of £1592.50. This sum was to be discharged over a period at the rate of £3.61 per week. These payments were discharged from the defendant's wages, and the purchase price was finally discharged in the month of October 1996.

The next significant event occurred in 1981. In that year the plaintiff's parents wished to return to Ireland and returned to live out the remainder of their lives at the premises. At that time the plaintiff and defendant were living in the premises with their five children, the eldest being at that time about 14 years old, and the youngest being about one year old. The available accommodation at the premises was inadequate to accommodate the plaintiff's parents, and accordingly it was decided by all concerned that the best solution was to build on an extension to the premises for her parents. The cost of the proposed extension was between ten and eleven thousand pounds. This sum was raised by availing of a Grant from Dublin Corporation of about £3600, together with an additional loan from Dublin Corporation of £4000, the balance being contributed in equal amounts of about £800 (sterling) from each of four of the plaintiff's siblings. The additional repayments resulting from the additional loan were discharged out of the defendant's wages. This additional loan was in turn discharged on 28^th February 1996.

The extension was duly completed in or about the month of March 1981, and the plaintiff's parents moved back into the premises.

The plaintiff's mother died in 1985.

The next significant event is that due to unhappy differences between herself and her husband, she left the family home in August 1989, and went to stay with one of her sisters in the Isle of Man. She left alone, leaving three of her children in the family home with the defendant. One of other two children was living with one of her sisters in England, and another with her sister in the Isle of Man. The plaintiff was not prepared to return to the family home unless the defendant vacated the family home.

The plaintiff says that during the first year after she left, she returned to Ireland on about six occasions, solely for the purpose of seeing her children. During the second year following her departure, it was more difficult to see her children for reasons which were not given in detail, but she instituted custody proceedings which resulted in her gaining custody of the children concerned. Following November 1992, her children lived with her in England. Since that time she has not returned to Ireland, and neither asked for nor received any maintenance from her husband. It appears that in 1995, the plaintiff obtained a Divorce in England from her husband.

She has been unaware of her husband's domestic circumstances since 1995, but believes that he has been in a relationship with another lady since some time before her children left Ireland to live with her.

The plaintiff's father died on the 27^th July 1991. She came back for the funeral. In a document stated to be an affidavit answering the plaintiff's Notice for Particulars (arising out of the defendant's defence in these proceedings), the Defendant says that on the occasion of her father's funeral, he and the plaintiff had a conversation described as follows by the defendant:

"I asked her what she intended doing about our family home as there was roughly another three years mortgage outstanding. In reply she said angrily that she was in love with the priest and was about to get divorsed (sic) and had no further interest in me or the mortgage and would prefer if I did not get in touch with her again. Therefore I had no contact with her until I heard from her solicitors in this matter."

This conversation was put to the plaintiff in cross-examination, but she said simply that it did not take place.

In due course a Grant of Probate issued in respect of her father's Will on the 28^th November 1995 to Mr N. T., solicitor, as the lawfully appointed attorney of her brother, D.R.O'B. who resides in Spain. He is the executor named in her father's Will. It appears that originally, her said brother had appointed the defendant to be the attorney for the purpose of extracting the Grant, but later Mr T. was appointed and proceeded to extract the Grant.

There was some delay in having the title to the premises altered to reflect the terms of the Will, but on the 11^th May 2001, Mr T. wrote to the defendant sending him the necessary forms to be signed by him in order to have him and the plaintiff registered as joint owners of the premises under the terms of the Will. It is a fact that some weeks prior to this letter, the plaintiff had commenced these proceedings since she had not been able to obtain the defendant's co-operation in the sale of the house. She was seeking the sale of the premises and an equal distribution of the net proceeds of such sale.

Correspondence with the defendant to this end had commenced as far back as 16^th January 1996. This correspondence went on for some years without resolution, and these proceedings were then pursued in order to have the matter of the sale of the house resolved.

The plaintiff also called Mr P.M., a Private Investigator, who gave evidence of having been instructed by the plaintiff's solicitor, to call to the premises in order to ascertain if in fact the defendant was living at the premises. Mr M. said that he had been a member of An Garda Siochana, but now operated a private investigation firm, M.I. Limited. He gave evidence of having called to the premises firatly on 22^nd January 2000 and again on the 1^st April 2001. He said he had called on another occasion, but had not made any note or record of that third call and could not therefore give any evidence other than in respect of the two dates mentioned. He said that on the 22^nd January 2000, he called to the premises, and his report of that visit states that when he called there appeared to be three people living at the house, one male and two female, all appearing to be of oriental origin. Some short time later another man who appeared to be Irish emerged from a room off the kitchen. Mr M. said the foreign persons were very pleasant, and when he asked to speak to the defendant, he was told that he was not there, but one of them gave him the defendant's mobile phone number. Mr M. also asked to speak to a R.T. but they did not know her, and appeared genuine about this. Mr M. says that a check of the premises revealed that a M. and J.T. were living there. Mr M. also says that he rang the house on several occasions in order to speak with the defendant but on no occasion was he there. He also could see no car at the premises that was registered in the defendant's name.

In his report dated 26^th January 2000, Mr M. says that the average rent in the area for a house of this kind would be in the order of about £850 per month. He says that he cannot say for how long the house had been rented out but that certainly it has been rented out to oriental people for the three years preceding his report.

Mr M. was cross-examined, and it was put to him that the fact that there did not appear to be a car outside the premises did not mean that the defendant's car might not have been parked on the road, but not immediately outside the house. It was put to him that in fact this house does not have its own driveway in which a car could park, but Mr M. thought it had, but could not be adamant about that. He recalled seeing a motorbike in the driveway, but was sure that there did not appear to be a car outside or near the house, and he therefore was fairly sure that there was no car at or near the house which would belong to the defendant.

Mr M. confirmed in cross-examination that the electricity account with ESB was in the defendant's name. In relation to M. and J.T. referred to in his report, Mr M. said it appeared from the Register of Electors that these names were shown as being of the address of the premises. He had not checked the Register himself, but someone had checked this for him.

In relation to his further visit to the premises on the 1^st April 2001, Mr M. provided a report dated the same day, in which he states that when he called to the premises on that date, he spoke to a young woman who said that she had rented the house from the defendant. He asked to speak to the defendant, but the lady said that he did not live there. She said that he called regularly and would be there in fact on the following day. The lady asked for Mr M.'s mobile phone number so that she could get the defendant to call him. Mr M. says that he asked for the defendant's mobile number, but the lady declined to give it to him, but said she would ask the defendant to phone him. Mr Mullin said that it did not appear that there was any other person living at the house, and that there was no car in the driveway.

This report also states that on the same date he called to a premises in Dublin city, which I understand to be a house owned at the time by Ms. R.T., the defendant's current partner. His intention was to see if the defendant was residing at that address. However, he established only that there was a lady named W., and that there was no record of the defendant ever having lived there. He also states that neighbours from whom he had made enquiries did not know the defendant.

The defendant delivered a Defence to these proceedings on the 14^th May 2001, and an Amended Defence on the 24^th March 2002. In these documents the defendants accepts that D.A.O'B. and L.O'B. are the registered owners of the premises, but he denies that they are what is described in the Defence as "the official owners", on the basis that it is the defendant who has at all times discharged the mortgages on the premises. The defendant claims that he is the official owner. The defendant also denies that on the death of L.O'B., the said D.A.O'B. became the sole legal owner. The defendant also denies Probate has been extracted to the estate of D.A.O'B. as he the defendant is challenging the contents of the Will. The Defendant in his amended defence denies that the plaintiff has or is entitled to any interest in the premises, either legal or beneficial. He also denies having let the premises, and asserts that at all times the premises have been his family home and sole residence. He claims to have an entitlement to the entire beneficial interest in the premises, or such proportion thereof as the Court shall determine. He asserts this on the basis that it has been he alone who discharged the rent and the mortgages on the premises, including the additional mortgage of £4000 obtained to construct the extension to the premises in or about 1981.

In his amended defence, the defendant also claims that the Partition Acts are unconstitutional and fail to protect the defendant's rights pursuant to the Family Home Protection Act, 1976. At the commencement I ruled that this latter point was not one appropriate to be dealt with on the hearing of this appeal, being raised for the first time in the amended defence delivered on the morning of the commencement of this appeal. The Attorney General had been served with the required Notice under the Rules in relation to the constitutional issue, but having so ruled, I excused the Attorney General from further participation in this appeal.

Evidence on behalf of the defendant:

Ms. R.T. gave evidence that she has been the partner of the defendant for about 9 years. It would appear that her sister is married to the defendant's brother, and that at some point after the plaintiff went to England, Ms. T. was asked to help the defendant in relation to minding the children who were then living with him, looking after the house. A relationship developed between her and the defendant in or around late 1992. At that stage it appears that she went to live in the premises along with her two children. Up to that time, however, she says she resided in her house in Finglas, and she says that the defendant resided at all times at the premises. She stated that the defendant had never moved into her house. She also said that the premises had never been rented out by the defendant.

In relation to the evidence that was given by Mr M. about finding tenants in the house, and the defendant not being there on the occasions he called, Ms. T. said that on those occasions they must simply have been out at the time. She said that the M. and J. T. who were in the premises were in fact brothers of hers who had come back for a short while from Canada after the funeral in Canada of a family member. They were not tenants. In relation to Mr M. saying that he found tenants of oriental origin in the premises, she said that she had never seen them there and that the house had never been rented out to anybody. In cross-examination, she also said she could not explain Mr M.'s evidence about tenants being on the premises.

The defendant's brother, A.M. also gave evidence. He stated that he had resided in the United Kingdom since about 1983, but that he used to return to Ireland about twice a year and would stay with the defendant at the premises on those occasions. During the last five years or so, he has been returning more often, perhaps three or four times. On some of these occasions he would stay with the defendant, on others he would stay with another of his brothers. He said he had never seen anybody else living in the house, except the defendant, Ms. T. and her two children. He was not aware if the house had ever been let to tenants, but as far as he was concerned there had never been tenants there.

In cross-examination, the defendant said that while the plaintiff was still living in the premises, he had not stayed there when he came back to Ireland. He also said he had never visited Ms. T.'s house in Dublin, or stayed there.

The defendant gave evidence also. There is no need to set out all of the defendant's evidence, as much of it simply conforms to the plaintiff's evidence as to the history of them both coming to live with the plaintiff's parents, and the arrangement whereby the premises were purchased from the Dublin Corporation, by the mechanism by which it would be done in the names of her parents, since they were the tenants ( and thereby also gain the benefit of the 30% discount on the purchase price), but that he would discharge the repayments to Dublin Corporation. There is not any relevant disagreement as to that transaction, except that the defendant says that he had a discussion with the plaintiff's father and that her father told him that the house would be his (i.e the defendant's). He also said that he was never aware that the plaintiff's father had made a Will leaving the house to the plaintiff and defendant in their joint names.

The defendant also agreed that when it came to building the extension in 1981/82, an additional mortgage had been obtained in the sum of £4000, and that there was also a Grant given on the basis of the plaintiff's mother's illness. He disagrees however with the plaintiff's evidence that four of her siblings each contributed £800 sterling towards the cost of the extension. He thinks it was more like about £800 or £1000 between the four of them.

The defendant also said in evidence that if he had been aware that the plaintiff's father had made a Will leaving the premises to he and his wife jointly, he would have taken steps to try and change that situation. He said he would not have stayed there paying the mortgage, only to have nothing at the end of it. He said that it was not until he received a letter in 2001 from the plaintiff's solicitors that he first became aware that the house was left to them jointly. He said that in the divorce proceedings which the plaintiff had commenced in England, there had been no mention of the premises. He was not aware that the plaintiff had a house of her own in England.

He stated categorically in his evidence that he had never rented out the house to anybody. In relation to Mr M.'s evidence about not seeing any car belonging to the defendant on the occasions when he called to the premises in January 2000 and April 2001, the defendant said that in fact he drives a van, and that it may have been parked elsewhere in the vicinity of the house, and that it was a small cul-de-sac and that there were often quite a number of cars parked along the road.

He also said that he had never resided anywhere other than in the premises.

Under cross-examination, the defendant agreed that the premises was the family home of his family and the plaintiff's parents. He agreed that following the arrangements for purchase in 1971/72, it was the intention that they would reside there, and that on his death, the plaintiff would continue to reside there as her home. He reiterated that he had had a conversation with the plaintiff's father to the effect that he would make the repayments and that the house would be his, and that the plaintiff's father had not stipulated that anybody else would own the house. There was, he says, never any suggestion or agreement that the house would be jointly owned. He said that the house would be primarily his but his wife would reside with him, and that she would get it when he died.

The defendant says that by leaving the house to him and his wife jointly, the plaintiff's father in effect reneged on his agreement with him that the house would be his alone. The defendant was referred to his Reply to Particulars (which is in the form of an affidavit for some reason), wherein he refers to having had a conversation with his wife at the time of her father's funeral (a conversation which the plaintiff denies took place) in July 1991. The exact quotation from this document is set out earlier in this judgment. He was asked why, if as he contends, the house was his and that he was not aware of anything to the contrary until he received a solicitor's letter in 2001, he was asking the plaintiff in July 1991 what she intended doing about the family home. He was in some difficulty in reconciling these matters.

He said that he may have stayed at his partner's house in Dublin on a few occasions, prior to her moving in with him, but never moved into that house.

Legal Submissions:

Mr Roughan B.L made submissions first of all on behalf of the plaintiff. He said that there was not much dispute between the parties as to the relevant facts upon which this case fell to be decided. He said that it was the defendant's case that there was a resulting trust in favour of the defendant resulting from the fact that it was he who had paid the rent and discharged the mortgage repayments on the premises. However, he said, this was not the case in fact, because the purchase price for the premises took account of a 30% discount on the price arising because of the fact that the plaintiff's parents had been tenants for more than ten years. While he accepted that the defendant had paid the rent and the repayments, the fact was also that when the extension was built in 1981/82, a Grant had been received on account of the illness of the plaintiff's mother, and there had been contributions from some of the plaintiff's siblings. Even if there was a presumption of a resulting trust (which he submitted there was not), that presumption could be rebutted by evidence of the intention of the parties at the time, and he submitted that it was clear from the evidence, including the terms of the plaintiff's father's Will that he intended that the premises would be there for the benefit of both the plaintiff and the defendant. This he submitted was also evidence of advancement, and the Court was referred to the decision of Keane J. (as he then was) in the case of J.C.v. J.H.C. (unreported), 4^th August 1982. In that case, the parties to the transaction were husband and wife, whereas in this case the parties relevant to the transaction are the plaintiff's parents, and their daughter and son in law. In relation to the case Keane J. (as he then was) was dealing with, the defendant husband had put up all the money to purchase a house, and the property had been put into the joint names of the husband and his wife. At page 3 of the unreported judgment, Keane J. (as he then was) states:

"Where property is taken in the joint names of two or more persons, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the money. This presumption may however be rebutted; in particular the circumstance of the person into whose name the property is conveyed being the wife of the person advancing the money may be sufficient to rebut the presumption under the doctrine of advancement."

Shortly thereafter on page 4 of the unreported judgment, the learned judge continues:

"It is clear that the defendant intended the property to be jointly occupied by the plaintiff and himself during their lifetimes but also intended the legal ownership to devolve upon her if he predeceased her. It is quite plain that he intended to give it to her; and that accordingly the property has been held from the beginning and is now held by the plaintiff and the defendant on a joint beneficial tenancy."

As I have said, this case is not on all fours with the instant case. It might be if the plaintiffs in the present case were Mr and Mrs M., and Mr and Mrs O'B. were defendants, in a claim by the former that the latter in whose name the premises were held, in fact held the premises on a resulting trust for former, since they had made all the payments to Dublin Corporation. However, that is not the case. Nevertheless, the case is of some assistance in relation to intention, but I will deal with that matter at the conclusion of this judgment.

Martin Hayden S.C. on behalf of the defendant submitted that questions about whether there was an advancement as a rebuttal to a presumption of a resulting trust did not arise in this case, since the property was in the names of the plaintiff's parents.

In contending that there was a resulting trust in favour of the defendant arising out of the transaction in 1972 when he says the defendant alone in effect bought the premises, but in the names of the plaintiff's parents, by discharging all the repayments to Dublin Corporation until their final discharge in 1996, Mr Hayden is relying firstly on a number of very old cases, namely Dyer v. Dyer (1788) 2 Cox Eq 92; In re A Policy No. 6402 of the Scottish Equitable Life Assurance Society (1902) 1 Ch 282; and In the Matter of John Slattery (1917) 2 IR 278. It is unnecessary for me to deal individually with these cases, save to say that they endorse the accepted principle, referred to by Keane J. (as he then was) in J.C. v. J.H.C. to which I have already referred, wherein the learned judge stated that where property is taken in the joint names of two or more parties, but the purchase money is advanced by one of them alone, the law presumes a resulting trust in favour of the person who advanced the purchase money, a presumption which is capable of rebuttal under certain circumstances, such as, inter alia, advancement or gift. This principle is also set out clearly in Hilary Delaney's work, Equity and the Law of Trusts, 2^nd Ed. at pages 156-157.

Mr Hayden also submits that the alleged contribution to the cost of the extension should be seen by the Court as a buying out by those siblings of their obligation to provide for and assist their parents when they were in England, and not as a gift to the plaintiff to assist in the cost of the extension. He also points to the fact that it was the defendant who continued to look after the plaintiff's parents until their deaths, after the plaintiff left to live in England. This is a factor, he submits, that ought to be taken into account in the defendant's favour.

Mr Hayden also submitted that the plaintiff is now seeking to derive a benefit from delay on her part in bringing this claim for partition and sale. In this context he referred to R.F. v. M.F. (1995) 2 ILRM 572 wherein it was held by Henchy J. in the Supreme Court that the fact that the wife in that case had allowed eight years to pass before making any complaint that the transfer of the farm was oppressive or unfair was so tainted with delay as to be inconsistent with her claim that she had acted under undue influence when she executed a transfer of the property in question. That case is a case of undue influence, unlike this case, but Mr Hayden refers to it in relation to the delay on the part of the plaintiff in bringing these proceedings. I shall return to this question of delay in my conclusions.

He submits that in the event that the property is sold and the proceeds divided as the court may decide, the defendant is faced with current house market conditions, compared with those prevailing at and shortly after the death of her father in 1995. Again this is a factor, he submits, to which the court must have regard in exercising its discretion under the Partition Acts. He submits that at the very most, assuming the court decides that the plaintiff has any entitlement to any share in the premises, the plaintiff should be limited to the extent of 30%, being the portion represented by the discount in the purchase price when the premises were purchased from Dublin Corporation in 1972.

Mr Hayden submits that the Court must have regard to the fact that if the premises were to be sold and the plaintiff were to be found entitlement to a joint share in the premises, the effect is that the defendant would not be able to purchase an alternative premises from his share, given his age and present market conditions.

James Dwyer S.C. on behalf of the plaintiff, responded to Mr Hayden's submissions. He summarised the facts, and submitted that it was clear that the plaintiff's parents were the tenants of the premises prior to 1972, and that in 1971/1972 it was agreed among the family generally that the premises would be purchased from Dublin Corporation by the plaintiff and the defendant, but that for the reason given in evidence, the house would be bought in the names of the plaintiff's parents. The fact was that the defendant was the only breadwinner in the marriage of the plaintiff and the defendant, and that it was obvious to all that it would be his wages which would be used to make the repayments. But that cannot be used to exclude the plaintiff from any beneficial interest in the premises, since to do so would be to go against the clear intention of all concerned that the house was being bought so that the plaintiff and defendant could live there with their children, and that on the death of either the plaintiff or defendant, the survivor would have sole ownership. He says that this clear intention is also corroborated by the provisions of the Will executed by the plaintiff's father in 1977, and which remained unchanged until his death in 1995.

In this regard, Mr Dwyer referred to R.F. v. M.F. (supra) wherein it was held that the equitable doctrine of advancement, as applied to transactions between husband and wife, has the effect that when the husband, at least where the circumstances show that he is expected to provide for the wife, buys property and has it conveyed to his wife and himself jointly, there is a presumption that the wife's paper title gives her a beneficial estate or interest in the property. Unless the presumption is rebutted by evidence showing a contrary intention on the part of the husband at the time of the transaction, he will be deemed to have entered into the transaction for the purpose of conferring an estate or interest on the wife.

Mr Dwyer submits that the Will speaks from the death of the plaintiff's father and that from that time the plaintiff was entitled to be registered as joint owner with the defendant. Any delay from that date until 2001 cannot prejudice the plaintiff in his submission. In any event he submits that the defendant has not suffered any prejudice from any such delay, since he was well aware from 1995 that his wife and he had both been left the house under the terms of the Will, and that it was the defendant who had frustrated an earlier resolution of this matter due to his failure to cooperate in the registration by failing to execute the necessary documents when asked to do so by solicitors acting for the plaintiff.

Conclusions:

The first matter I am satisfied on based on the evidence I have heard is that in 1971 it was agreed between Mr and Mrs M., and her parents, Mr and Mrs O'B., that the tenant purchase scheme introduced by Dublin Corporation around that time, should be availed of and that the premises should be purchased at the price stipulated which took into account the discount to which Mr and Mrs O'B. were entitled due to the fact they had been tenants for the required period, which I believe to be not less than ten years. I am also satisfied that, be it correct or not, they were of the belief that this could be done only by the purchase being achieved in the names of Mr and Mrs O'B.

I am further satisfied that the purchase would be on the basis that the repayments should be made by Mr M., but on the basis that he and not Mrs M. was working, but that the intention of Mr and Mrs O'B. was that the house would be bought in this way so that Mr and Mrs M. would be the owners from the O'B.s' point of view, even if Mr O'B. may have been of the opinion, being that sort of man, that Mr M. would be the owner. I have no doubt that even though he may have been of that view, it was not with a view to his daughter, the plaintiff, being excluded as an owner in any way that would deprive her of any beneficial interest in the premises. It is clear from the evidence that the intention was beyond any doubt that the premises would be the M.s' family home and that on the death of Mr M., should that occur prior to Mrs M., that she would be the owner of the premises in due course.

Eventually, as we now know, Mr and Mrs M. separated. The reasons do not concern me, except to say that while the prima facie desertion by Mrs M. would, subject to any claim by her that such desertion resulted from any unreasonable behaviour on Mr M.'s part disentitle her from claiming maintenance, it could not, even on the version of events most favourable to Mr M., disentitle her to any pre-existing property rights, and in particular, to any interest she may have had in the premises.

As we know, Mr and Mrs O'B. passed away in the 1980s, Mr O'B. having executed a Will in England in which he left the premises to Mr and Mrs M. jointly. This is consistent with the fact that it was the O'B.s' intention that the house was in effect being bought from Dublin Corporation, though in the names of the O'B.s, for the benefit of Mr and Mrs M.

It is the defendant's contention now that since it was he who was discharging the repayments, and did so until all monies had been repaid, including those due on foot of the second mortgage obtained in 1981/82, the premises are in fact his on the basis that his wife provided no consideration. In effect he is saying now that if the purchase had been effected at the time into the joint names of he and his wife, rather than the O'B.s, his wife would be holding her share of the premises on a resulting trust for his benefit, and that therefore she should not be entitled to a beneficial interest therein, even though the premises were left to them both by Mr O'B. Implicit in such a submission is a contention that Mr O'B. was not entitled to leave the premises by his Will either to Mr M. alone or to Mr and Mrs M. jointly, as the O'B.s were holding the premises on a resulting trust for him alone, they having provided no consideration. Leaving aside completely for the moment the fact that the O'B.s had in fact contributed 30% of the consideration by reference to the discount in the price already referred to, and leaving the further matter of the Grant and the contributions from Mrs M.'s siblings in 1982, there is in my view no reality in Mr M.'s contention.

It follows also from Mr M.'s submissions, that if, which he denies, Mrs M. has an entitlement to a joint interest arising from her father's Will, that there is a presumption of a resulting trust in his favour in respect of her interest. That would imply that the income from which Mr M. paid the repayments was never the family income. The fact is that Mrs M. did not work during the marriage, her job being to be at home to look after the children, and look after the needs of the home.

I conclude from this rather convoluted and difficult set of facts that the O'B.s certainly held the premises in their name on a resulting trust for both Mr and Mrs M. Had Mr O'B. left the premises in his Will to some other party, and had the M.s' marriage not broken down resulting in a separation and divorce, both Mr and Mrs M. would have been entitled to bring an action to have themselves declared the beneficial owners on the basis of a presumed resulting trust. There is no possible evidence by which the O'B.s' personal representatives could have rebutted that presumption on the basis either of advancement from the M.s to the O'B.s, or by any evidence of a contrary intention on the part of the O'B.s.

I am also satisfied that Mr O'B. made his Will in the way he did because he knew that the house was in reality belonging to the M.s and that the Will was the easiest way of dealing with the situation that would arise on his death. I do not have to deal with the fact that in his Will at the time he executed it, he ignored the fact that his wife, Mrs O'B., was in fact a joint owner with him of the premises, but it confirms, I suppose, that he was the sort of man who believed the normal thing was for the husband to own the property, but to go any further , as I have said, and conclude that he would not have wanted his daughter to have an interest in the premises, is too far-fetched to be real.

It is not necessary to consider any further the legal authorities to which I was referred in connection with resulting trusts, advancement and so forth. Those concepts are not really relevantly in dispute. I am satisfied that by whatever route one travels in order to unravel the facts of what happened over the years, the result is the same, namely that the plaintiff and the defendant are entitled now to be registered as joint owners of the premises, and that there is no resulting trust arising between the plaintiff and the defendant. Both have a joint interest in the premises, and I will deal later with the respective proportions in which that joint interest ought to held by them.

Having so found, I must then consider the questions which arise under the Partition Acts, since the plaintiff is seeking relief under those Acts so that the premises can be sold, with the proceeds being divided in proportions which the Court would consider just in all the circumstances.

The first thing to be said is that the relief sought by the plaintiff is a discretionary relief.

The Court's power to order a sale is contained in Section 3 of the Partition Act 1868, which states as follows:

"In a suit for partition, where, if this Act had not been passed, a decree of partition might have been made, then if it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions."

It is clear from the wording of the section that the Court has a wide discretion in whether it orders a sale of the premises. All relevant circumstances can be taken into account. In addition, when the section states "if it appears to the Court that……… a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them", it is not just the applicant who must be considered but all those interested in the property. If authority is needed for this, it is found in Drinkwater v. Ratcliffe (1875) LR 20 Eq 533, and Fleming v. Crouch (1884) WN 111.

Section 4 of the same Act gives the Court similar powers as follows:

"In a suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions."

In the latter section the Court also has a wide discretion, except that a sale is mandated by the words "the Court shall, unless it sees good reason to the contrary, direct a sale of the property" (my emphasis). The onus of establishing a good reason to the contrary rests on the party opposing the application. In this regard see Pemberton v. Barnes (1871) LR 6 Ch App 685.

It would appear that Section 4 is the section most appropriate to the present application, since the Court is being requested to make an order by a "party or parties interested, individually or collectively to the extent of one moiety or upwards."

It follows therefore that the defendant in opposing the application has the onus of establishing that there is a good reason to the contrary. In this regard Mr Hayden has submitted to the Court that if a sale were to be ordered and a division of the proceeds made, the defendant, bearing in mind the current property market and his age (in the context of his ability to obtain a loan) and the circumstances generally which include the fact that the plaintiff has a house in England, would effectively be left without a home. It is also a factor that the premises were, prior to the separation of the parties, the family's family home.

I am satisfied that the defendant has discharged that onus in the present case and that there is a good reason why the court should not order the sale of the premises. Even if Section 3 were the appropriate section for this application, I am satisfied that the Court, in the exercise of its discretion, ought not to direct a sale of the premises in all the circumstances.

In my view it is also necessary to address the matters in issue in this case in the light of the provisions of the Family Home Protection Act, 1976 (hereinafter referred to as "the 1976 Act"), although Counsel has not addressed me specifically in relation to the implications of the 1976 Act on the question of relief being claimed under the Partition Acts.

It has been decided that any rights a party may have to seek relief under the Partition Acts must be tempered by the effect of the1976 Act, Section 4 of which provides that the court may dispense with the consent of a spouse if it is unreasonably withheld. In the present case, if this court was being asked to dispense with the defendant's consent to a sale, as being unreasonably withheld, it would not be prepared to do so in the circumstances of this case, as it would not have any sufficient evidence from which to conclude that any withholding of consent is unreasonable.

Section 2(1) of the 1976 Act defines a family home as "primarily meaning a dwelling in which a married couple ordinarily reside. The expression comprises in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before leaving". It is clear that the premises in this suit come within this meaning.

In the case of AL v. JL dated 27^th February 1984, (unreported), Finlay P. (as he then was) was dealing with a very similar set of facts as this case. In that case, it was intended that a family home be purchased in joint names, but in fact the house was put into the name of the husband only, the wife being at the date of purchase under the age of majority. Unhappy differences arose and the wife left the family home to live with another man. During the marriage they had both contributed to a joint pool out of which repayments were made on the mortgage, but following the wife's departure the husband alone continued the repayments. The husband maintained that the resulting trust upon which the husband in that case held the wife's interest was a conditional one, namely conditional upon the maintenance of the marriage relationship, and that by leaving her husband, the trust was thereby avoided. The learned President did not agree. At page 4 of the unreported judgment, the learned President (as he then was) states as follows:

"It was the clear intention of these parties that this house should be purchased jointly by them and in my view the events which happened and the circumstances under which it was purchased in the sole name of the husband when viewed through equitable principles must be given the same force and effect as if their intention had been carried out in the first instance, as if they were both grantees under the Deed of Conveyance of an equal share in the house………There is not, in my opinion, in the general principles of equity room for a voidable or conditional trust depending upon the maintenance of the marriage nor can the courts investigate the true reasons for the unfortunate break-up of the marriage in order to ascertain the reality of the beneficial ownership of two people who agree jointly to purchase a house and make each of them contributions towards the redemption of mortgages standing upon it. I am satisfied that the wife is entitled to a 50% share or one half share in the equity of redemption of these premises."

The facts are sufficiently similar to the present case to make this decision relevant in this case. I have already concluded that Mrs Murphy made an indirect contribution to the household by her involvement at home in the rearing of the children and her running the house, as it were, and this replaces the reference in the above case to both the husband and the wife contributing to a joint pool from which the mortgage repayments were made. I note also that in AL v. JL, there were no children in the marriage.

Finlay P. went on in that case to find that while in the period before the wife left there was a clear entitlement to a 50% joint interest, the husband was entitled to some credit in respect of the period after which the wife left, as he continued to make the repayments on the mortgage from his sole funds. The parties in that case had married in 1975 and the wife had left in 1980. Dealing with the question of what relevantly comprised the equity of redemption in which the wife had a 50% interest, the learned President (as he then was) stated as follows:

"In my view the equity of redemption in these premises as of February 1980 consisted of the then gross market value of the premises, less the amount still outstanding to Irish Nationwide Building Society………Having determined the relationship in terms of percentage between the total amount outstanding on the mortgage as of February 1980 and the gross market value of the premises, it seems to me that the precise form of declaration which I must then make is to declare the wife entitled to one half of the percentage constituting the equity of redemption at that time. To take as a simple example, if the amount outstanding on the mortgage at that time constituted 10% of the gross value of the premises, the wife would be entitled to a 45% share in the ownership of the house."

Interestingly, the learned then President went on:

"With regard to the claim for a sale of the premises pursuant to the Partition Acts, the position appears to me to be as follows. Having regard to the provisions of the Family Home Protection Act, 1976 in the absence of an agreement between the parties, an order for sale cannot in my view be made under the Partition Acts unless the court is also satisfied that it should dispense with the consent of the non-agreeing spouse under Section 4 of the 1976 Act".

On the facts of that case, he was not so satisfied. In O'D v. O'D, 18^th November 1983 (unreported), Murphy J. had adopted a similar attitude to the impact of the 1976 Act on the question of relief being sought under the Partition Acts in respect of a family home. I respectfully adopt that reasoning for the purpose of the present case.

In the present case, I have already found for the reasons stated that the parties are entitled to be registered as joint owners of the premises. For the purpose of deciding the respective proportions of that interest, the methodology adopted by Finlay P. (as he then was) in AL v. JL seems entirely appropriate for the purpose of doing justice between the parties in this case, given that Mrs M. left the family home in August 1989, after which time Mr M. continued to make the repayments, and Mrs M. was of course no longer at the premises to continue her indirect contribution to the household budget.

It is my view that a valuation of the premises as of August 1989 should be obtained from an independent valuer, and that the amounts outstanding to Dublin Corporation on both mortgages be ascertained as of that date. The court can then calculate what percentage proportion of the market value is represented by the equity of redemption, and will declare the ownership of the premises to be divided on a 50-50 basis of that percentage proportion. I have already found that the O'B.s were entitled to the 30% discount off the purchase price in 1972, and that I am satisfied the plaintiff's siblings made a contribution of £3200 Sterling to the extension, and that a Grant of £4000 was also obtained derived from the illness of the plaintiff's mother. Without being necessarily mathematically accurate to the last pound, I am satisfied that all of these matters mean that a 50-50 split between the parties is a fair one, but based on the value of the equity of redemption as at August 1989. As I have said already, this conclusion amounts to the same conclusion I reached when finding that the parties were entitled to be registered as joint owners, there being no resulting trust existing for the benefit of the defendant in respect of the plaintiff's share, save with the slight modification arising from the methodology emanating from AL v. JL as to the value of the equity of redemption of the premises.

I should just add that I am not satisfied that the evidence is sufficiently clear in respect of the letting of the premises by the defendant after the plaintiff left, in order to make any finding in relation that issue.

Finally, the defendant has said that the plaintiff has delayed in bringing this application and that she ought not to benefit from her delay. I am satisfied that the appropriate way to look at any delay is to see whether the defendant has suffered any prejudice from the delay, even if I were to find the plaintiff to have been guilty of such. I am not so satisfied in the light of my findings and the decision I have come to as to the method of resolving the issues in this case.

I therefore refuse the relief sought by the plaintiff under the Partition Acts, and I also refuse the declaration sought by the defendant that he be entitled to be declared the owner of the entire beneficial interest in the premises. I therefore set aside the order of the learned Circuit Court judge made on the 26^th June 2002, and I will adjourn this matter for a period to be agreed with Counsel, at which time I will finalise the order I propose making, when I have received the information I have mentioned, and after I have heard submissions from Counsel as to whether the parties should be registered as either as joint tenants or as tenants in common, in the absence of any agreement being reached between the parties in that regard.