Essay about The Rights of Cohabitees

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The Rights of Cohabitees

Presently in Ireland legislation[1] 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
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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 TD[8] 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 interest[9]. Thirdly, work done in the home is not recognised by the resulting trust. In L v L[10] 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

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