1. In
these proceedings, the Plaintiff, who is the wife of the first named Defendant,
brings a claim pursuant to Section 12 of the Married Women's Status Act, 1957
that she is entitled to a beneficial interest in lands in County Kilkenny held
in her husband's sole name. She also seeks a declaration that the second named
Defendant's claim, if any, to be secured on the said lands affects only her
husband's beneficial share in the said lands.
2. The
lands in question are farm lands comprised in and described in Folio 7567 of
the Register of Freeholders of County Kilkenny. The folio, a certified copy of
which was handed into Court, shows that as and from the 21st July, 1972 W.D.,
the first named defendant, is full owner of the lands. On 8th September, 1989,
a charge was registered in favour of the second named Defendant, Barclays Bank
Ireland Limited, for present and future advances repayable with interest. The
lands themselves consist of 26 acres, 3 roods and 30 perches. The family home
of the Plaintiff and the first named Defendant does not form part of these
lands and they have never lived in a family home on the lands. The lands are,
and have at all relevant times been, used by the first named Defendant in his
business as a farmer.
3. At
the opening of the hearing before this Court, an application was made on behalf
of the Solicitors for the Plaintiff to come off record in the case. The
Plaintiff consented to this application and an Order to this effect was made.
The Plaintiff was accompanied in Court by a Mr. Looney, whom she wished to have
with her as a friend to assist her. Counsel for the second named Defendant
objected to the presence of Mr. Looney on the grounds that he had been involved
on behalf of both the Plaintiff and the first named Defendant in previous
negotiations with Barclays Bank.
4. I
was conscious of some undesirable elements in allowing such a person to be
present in Court, in particular, in a case which was to be heard in camera. I
had also formed the impression that the advices being given by Mr. Looney to
the Plaintiff appeared to be of a quasi-legal nature and to deal with matters
which would more properly be dealt with by a Solicitor. Nevertheless, bearing
in mind the disadvantages of a personal litigant, I permitted Mr. Looney to
remain in Court to assist Mrs. D. while stressing that his role was strictly
limited to taking notes on her behalf and quietly making suggestions and
assisting her generally during the hearing as had been set out in an Order made
by the Supreme Court in a similar situation on 13th October, 1995 in the case of
Seamus
Quinn -v- The Governor and Company of the Bank of Ireland and Martin A. Harvey,
Timothy Bracken and Breda Morey
.
5. In
the event, Mrs. D. herself gave her evidence and set out the basis of her claim
clearly and cogently and was not unduly disadvantaged by the absence of legal
representation.
6. The
first named Defendant was also unrepresented and had been so at all stages of
the proceedings. At the outset, he made it clear that in the circumstances he
was not opposing his wife's claim. He had not filed any Affidavit in the
proceedings, but at the request of the Court, he gave oral evidence of certain
factual matters, mainly by way of clarification.
7. The
second named Defendant was fully represented by Solicitor and Counsel. The
evidence of the second named Defendant was fully and clearly set out on
Affidavit sworn by Mark McParland, Solicitor, on behalf of the bank.
8. The
Plaintiff's Special Summons which was issued on the 11th June, 1995 was
originally grounded on an Affidavit sworn by her on the 10th July, 1995. On
the day of hearing of the proceedings, she submitted a second Affidavit to the
Court which had, as I understood the matter, been drafted with the assistance
and advice of Mr. Looney. While this Affidavit had not been served in time on
either Defendant, in the circumstances, I permitted it to be opened to the
Court. Unfortunately, it consisted largely of allegations of various kinds of
improper conduct against the second named Defendant and its servants and agents
which could not in any circumstances form a relevant part of the evidence in
the proceedings before the Court. Whether or not such allegations were based
in fact, they were relevant only to the bank's separate proceedings for
possession against the second named Defendant. This was pointed out to the
parties. The Plaintiff's evidence therefore consisted of her grounding
Affidavit and the relevant parts of her second Affidavit sworn on the 21st
January, 1997 and her oral evidence.
9. The
Plaintiff and the first named Defendant were married on the 9th August, 1983
and they have three children aged ten, eight and seven. The Plaintiff is a
nurse by profession and the first named Defendant is a farmer. For the first
six years of their marriage, they lived in the home of the Plaintiff's mother
in Abbeyleix. Throughout the marriage, the Plaintiff has worked in her
profession as a nurse, at first full time and at a later stage part time. In
her evidence, the Plaintiff said that during the six years in Abbeyleix, she
made fairly minimal contributions to her mother's household since her mother
was aware that she was saving for a home for herself and the first named
Defendant. At the time of the marriage, she had savings of her own of in or
about £2,000. The Plaintiff states that between these savings and the
savings she made from her earnings between 1983 and 1989 she contributed a sum
of in or about £25,000 to the building and furnishing of the couple's
present family home at Feereigh, Donaghmore, County Laois. The evidence of the
amount of her contribution was challenged in cross-examination by Counsel for
the bank and no actual receipts were produced in evidence. However, the
Plaintiff appeared to me to be a good manager and financially careful and I
accept her evidence as regards her contribution. I also accept her evidence
that she obtained some building materials such as second-hand windows from
members of her family and that these were also used for the family home. The
Plaintiff and the first named Defendant agree that the Plaintiff paid for or
otherwise provided the materials used in the building while the first named
Defendant either carried out the labour himself or, where necessary, paid for
other labour costs. The Plaintiff also provided monies for the furnishing of
the family home.
10. The
said family home was not however a new house but an extension and adaptation of
the house already occupied by the first named Defendant's widowed mother and
other members of his family. The building works which were carried out, and to
which the Plaintiff contributed, seem to have been the creation of a separate
apartment for the accommodation of the Plaintiff, the first named Defendant and
their family. They moved to this accommodation in or about 1989 and continue
to reside there as their family home.
11. The
Plaintiff in part rests her claim to a beneficial interest in the lands in
Folio 7567, County Kilkenny (which I will call "the Kilkenny lands") on her
contribution in cash and kind to the building and furnishing of this family home.
12. The
Plaintiff in her evidence also stated that throughout the marriage she received
very little by way of housekeeping money or other contributions to the
household maintenance from her husband. By and large, she used her earnings
as a nurse to provide for the day to day expenses of the household while her
husband used his monies in operating the farming enterprise both on the
Kilkenny lands and on other lands in Laois which he held jointly with his
brother P. It appears that the husband and the wife operated virtually
separately as far as the finances of the family were concerned. The husband
agreed with his wife's evidence in this regard.
13. The
Plaintiff also rests her claim on an assertion that, at an early stage in the
marriage and from time to time thereafter, her husband told her that he would
put the Kilkenny lands into their joint names. She was unable to give any
detail as to dates and times when such an undertaking was given and it was
clear that no steps, such as consulting a solicitor, were ever taken to put
such an undertaking into effect. She was however adamant that she had relied
on her husband's statements and considered herself to be a joint owner of the
lands.
14. The
husband, in evidence, gave a much more casual impression of any statement made
by him. He admitted that a transfer into joint names "
would
have been spoken of"
but that there were many problems "
higher
in his head
"
than the question of transferring any property to his wife. Under
cross-examination, he admitted that he had told the bank in 1986 that he was
the sole owner of the lands and that in 1986 he would certainly have regarded
himself as being the sole owner.
15. It
should of course also be noted that there is no matrimonial dispute between the
Plaintiff and the first named Defendant and there are no proceedings whether
pursuant to the Judicial Separation and Family Law Reform Act, 1989 or
otherwise between them other than the wife's present claim pursuant to the
Married Women's Status Act, 1957. Neither has the wife made any claim to
beneficial ownership of a share in the family home (which is held in the
husband's sole name) nor to beneficial ownership of any other lands which the
husband holds jointly with members of his family.
16. I
now turn to the evidence in regard to the second named Defendant, Barclays Bank
Plc, formerly Barclays Bank Ireland Limited. The lands the subject matter of
these proceedings (the Kilkenny lands) were charged by Mr. D. to Barclays Bank
by virtue of a Deed of Charge dated the 26th May, 1986.
17. The
charge was granted as part of the security required for a Joint Commercial Loan
Account for the first named Defendant and his brother, P. D., who owned lands
jointly with him in Laois and apparently farmed with him. The lands in Laois
also formed part of the security but the family home of the Plaintiff and the
first named Defendant was in no way involved.
18. The
loan from the second named Defendant was not the first involvement in
borrowings and indebtedness of the first named Defendant. In his own evidence,
he says that in or about the time of his marriage he (or he and his brother)
owed a large sum to the Bank of Ireland and it appears that the loan from the
second named Defendant was part of a re-financing package for the farming
enterprise.
19. The
first named Defendant and his brother defaulted on the loan and the second
named Defendant brought proceedings against them by way of Special Summons on
3rd May, 1991 seeking an Order for possession of the Kilkenny lands and the
Laois lands and an Order for the sale of the lands in default of payment of the
sums then due and owing on the Commercial Loan Account which then amounted to
£65,000 odd. There is no need here to detail the proceedings and
negotiations which ensued, most of which are irrelevant to the Plaintiff's
present claim. In summary, on 14th October, 1991, an Order of Possession over
both the Laois and Kilkenny lands was granted to Barclays Bank by Mrs. Justice
Denham in this Court. After further unsuccessful negotiations, Execution
Orders of Possession issued and were executed, though with some difficulties
which gave rise to Orders made by Laffoy J. on 22nd May, 1995 and 15th June,
1995. The position at present is that the bank, in accordance with the Court
Orders, has sold the Laois lands but has not at yet sold the Kilkenny lands.
20. In
his Affidavit sworn on behalf of the second named Defendant, Mr. McParland
avers that the bank proceedings and the Court Orders were not only served on
the first named Defendant and his brother but also on the Plaintiff for her
information. In evidence, the Plaintiff admits that she was served with the
documents but says that she neither understood them nor took any notice of
them. She regarded them as solely her husband's business. She had enough on
her mind what with the children, the household and her employment without
having to cope with her husband's difficulties with the bank. However, she
does admit that she took some active part in verbal negotiations with the
bank's representatives at the family home on the 5th October, 1994, the day of
execution of the Order of Possession of the Laois lands. She also concedes
that at no stage before the issue of the present proceedings in June 1995 did
she in any way indicate to the bank that she had any proprietary claim on the
Kilkenny lands. She explains this submission by saying that she was unaware
that she had any rights.
21. Considering
the evidence as a whole, it is hard to avoid the conclusion that the
Plaintiff's action is more a last ditch effort to rescue some form of asset
from the bank than a true dispute between herself and her husband.
Nevertheless, it seems proper that the Court should consider, firstly, if she
has any sustainable claim on the Kilkenny lands under Section 12 of the Married
Women's Status Act, 1957 and, secondly, if she has such a claim, whether her
claim can have any priority over the bank's undoubted rights as established in
their proceedings against the first named Defendant and his brother.
22. During
the 1970's and 1980's, a considerable line of case law was developed in this
Court in regard to the effect of direct and indirect financial contributions by
spouses in acquiring a beneficial interest in matrimonial property. This line
of cases stemmed from the decisions of the learned Kenny J. in
Heavey
-v- Heavey
(1974) 111 I.L.T.R. 1 and
C.
-v - C.
[1976] IR 254 and developed through the law of resulting and constructive
trusts. A clear and authoritative statement of the law in this area is to be
found in the judgment of the learned Finlay P. (as he then was) in the case of
W.
-v- W.
[1981] I.L.R.M. 202 at pages 204 to 205. I quote the paragraphs relevant to
contributions made by a wife:-
23. These
principles received the approval of the Supreme Court in the case of
McC.
-v- McC.
[1986] ILRM 1 in which Henchy J. stated:-
24. The
Supreme Court again approved this approach in
N.
(E.) -v- N. (R.)
[1992] 2 IR 116.
25. While
it is accepted on the evidence of the wife in the present proceedings that she
made a substantial direct contribution to either the improvement or the
provision of the family home, she has not made any claim to a beneficial
interest in that property. Her present claim applies only to the Kilkenny
lands. These lands had been acquired by her husband in his sole name in 1972,
eleven years prior to the marriage. It is clear that she made no direct
contribution to the acquisition of these lands.
26. With
regard to indirect contributions, the wife, by her own earnings and her
expenditure of these earnings on the needs of the household, undoubtedly
contributed to what the learned Finlay P. described as the "general family
fund" and thus freed her husband to use any earnings of his own in the farming
business. However, such an indirect contribution could not have resulted in
the wife having acquired any interest in the Kilkenny lands between the
marriage in 1983 and the date of the bank's charge in 1986 since the husband
was already the full owner and the lands at that stage appear to have been
unencumbered. By 1986, therefore, the wife had no beneficial interest in the
lands resulting from the operation of a trust based on either direct or
indirect contributions. If the wife had no proprietary rights in the form of a
beneficial interest in the Kilkenny lands in 1986 at the stage when the second
named Defendant bank acquired the charge, then the entire ownership of the
lands both legal and beneficial was available to the husband to use as security
in obtaining his loan from the bank.
27. The
wife also bases her claim on her evidence that her husband on a number of
occasions undertook to transfer the lands into their joint names. Even were
such an undertaking, without any further steps, sufficient to ground a claim
for a half share in the lands, it seems to me that the husband's evidence does
not evince any serious intention to carry out such a transfer at any stage. He
is in a sense now willing to cooperate with his wife in order to reduce the
bank's claim, but the height of his evidence was that such a thing "would have
been spoken of" but he had problems "higher in his head" than that. In
cross-examination, as I have said, he was quite clear that in 1986 he regarded
himself as the sole owner of the lands. It is also clear from the wife's own
evidence that she took little or no interest in the husband's farming
activities or in the land until she realised that the second named Defendant
was about to take possession of it in October 1994. The fact is that when the
bank's proceedings for possession were served on her she did not even read the
papers handed to her as she regarded all that as being her husband's and his
brother's business and nothing to do with her. This is not the attitude of a
joint owner of the lands. Understandably, she felt she had enough to cope with
in the household, the care of the children and her profession. Nevertheless,
her evidence does not create the impression of one who believed over the years
of the marriage that she had a proprietary interest and a half share in the
Kilkenny lands. On the evidence, this aspect of the wife's claim cannot
succeed.
28. In
considering both these aspects of the wife's claim, one must of course clearly
distinguish this type of claim pursuant to the Married Women's Status Act from
a claim to a Property Adjustment Order under the Judicial Separation and Family
Law Reform Act, 1989 or the Family Law Act, 1995, where the Court is directed
to have regard to very many more factors and wider considerations than are
possible under the Married Women's Status Act. In the present proceedings,
judicial separation is not sought and happily the family remains intact. The
considerations relevant to a Property Adjustment Order therefore are not
applicable here.
29. On
the evidence in this case, it seems to me clear that both the direct and
indirect contributions of the wife went towards the acquisition or improvement
and furnishing of the family home and had no relevance to the Kilkenny lands.
Her claim to a beneficial interest due to contributions therefore also fails.
30. Counsel
for the second named Defendant also made a number of submissions to me in
regard to any possible priority of the wife's claim over that of the bank and,
for the sake of completeness, I will also refer to these submissions.
31. Even
if the wife were to establish a beneficial interest in the lands which existed
at the time of the registration of the bank's charge, it does not appear to me
that such a claim could take priority over the bank's charge. Under the
Registration of Title Act, 1964, such an unregistered burden could only take
effect and have priority if it came within Section 72 subsection (1)(j):-
32. At
no stage was Mrs. D. in actual occupation of the Kilkenny lands nor did she
receive rents and profits from them.
33. Counsel
for the second named Defendant also submitted, correctly in my view, that the
Plaintiff was barred from her equitable remedy by her acquiescence in the
obtaining of the commercial loan by her husband and in the registration of the
charge. The Plaintiff, in evidence, stated that she was unaware of the
significance of her husband's borrowings at the time (in 1986) and this may
well be so. However, the Special Summons of the second named Defendant was
served on her in May 1991 and the Order for Possession in December 1992. At no
stage did the Plaintiff indicate to the second named Defendant that she had any
claim to the lands or that she considered herself to be a joint owner.
34. On
the 5th October, 1994, lengthy negotiations took place between the
representatives of the second named Defendant and the first named Defendant,
his brother and the Plaintiff. Although the Plaintiff appears to have taken an
active part in these negotiations, she did not in any way assert that she was a
joint owner of the lands or had any claim on them. The first indication of her
claim was the issuing of her present proceedings on the 11th June, 1995. As
was stated by Lord Wensleydale in
Archbold
-v- Scully
(1861) 9 H.L.C. 360 at 383:-
35. It
appears to me that by her failure to put the second named Defendant on notice
of her claim at any stage before June 1995 the Plaintiff acquiesced in the
situation.
36. From
another point of view, it could also be said that the Plaintiff is estopped by
her conduct, including her negligence and silence, from asserting her claim as
against the second named Defendant (see
Doherty
-v- Doherty
[1991] 2 I.R. 458, judgment of Blayney J.).
37. I
cannot but feel sympathy for the Plaintiff's financial difficulties,
particularly as they seem to have arisen through no fault of her own, but for
all the reasons set out above the Plaintiff's claim must fail.