Article on Trusts of the Family Home: Social Change, Judicial Innovation and Legislative Reform [Ireland]

John Mee recently published an Article entitled, Trusts of the Family Home: Social Change, Judicial Innovation and Legislative Reform, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This article surveys the development, over the last half-century, of the law in relation to trusts of the family home in Ireland. The focus on disputes over the beneficial ownership of the family home, the most important asset owned by many families, allows a consideration of the evolution of an aspect of the law of resulting and constructive trusts, set against the background of relevant legislative developments. The most common trigger for disputes over the beneficial ownership of the family home is the breakdown of an intimate relationship, whether a marriage or civil partnership or cohabitation. However, the trigger could also be the death or bankruptcy of one of the parties or a dispute with creditors. In addition, not all disputes arising on the breakdown of a relationship will involve an issue related to the ownership of the family home, one obvious reason being that many couples live in rented accommodation. There is, therefore, an imperfect match between the area of the law of equity conveniently described as “trusts of the family home” and the issue of the property consequences of relationship breakdown. Nonetheless, the development of this area of the law of equity has clearly been dominated by concerns as to the latter issue.

A feature of the development of the law that will emerge in this article is that the social phenomenon or “problem” that equity has been seeking to address has changed over the course of the decades. Initially, disputes between married couples were the primary focus of the case law; however, the attention of commentators and law reformers has more recently shifted to those arising in the context of unmarried cohabitation (even if the case law in this context has remained sparse). Many judges and commentators have felt that there is the potential for injustice “upon the termination of a relationship where the parties were economically and emotionally interdependent and relied on the relationship rather than their separate legal entitlements to secure their financial well-being”. It will be seen that there is now Irish legislation governing the property rights of married couples upon judicial separation and divorce, as well as parallel legislation covering civil partners, with a more limited regime in place in respect of “qualified” cohabitants. Thus, not only do the equitable rules developed by our courts no longer have as much practical importance as they once did, it is also arguable that further judicial extension of them would not be democratically legitimate.