Property Disputes between Co-Owning Cohabitees—Ireland and England Compared

Abstract

Disputes in relation to the family home frequently arise on the breakdown of a relationship between unmarried cohabitees. The Irish purchase money resulting trust may generate no beneficial interest, or one that is smaller than expected, for the primary carer who co-owns the family home. In addition, the primary carer may be forced to leave the home, as an application by the other co-owner for an order for the sale of the property pursuant to the Partition Acts 1868 and 1876 is unlikely to be refused. This article compares the position of this vulnerable co-owner with the position of her counterpart in England. It concludes that the application of the English common intention constructive trust is likely to generate a more generous share in the beneficial ownership for the primary carer. Also, in proceedings pursuant to the Trusts of Land and Appointment of Trustees Act 1996, the English courts are afforded the flexibility to refuse or postpone an order for sale if the primary carer and the children continue to reside in the co-owned property.