• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Compare and contrast the manner in which equitable principles have been used as a means of resolving property disputes between co-habitees in this jurisdiction and in England.

Extracts from this document...

Introduction

"Compare and contrast the manner in which equitable principles have been used as a means of resolving property disputes between co-habitees in this jurisdiction and in England. Identify what you perceive to be the strengths and the weaknesses of these different approaches and briefly suggest any improvements which might be taken on board by the Irish courts in resolving disputes of this nature." It is first important to note at the onset that in the context of property disputes between spouses, the property rights are subject to the courts wide discretionary powers pursuant to the judicial Separation Reform Act 1989, which allows the courts to make property adjustment orders subject to specific factors which the court must have regard to in resolving a dispute. Also of relevance is the Matrimonial Home Bill, 1993, which was referred to the Supreme Court by former president Mary Robinson, on the grounds that matrimonial property would be automatically held jointly by the spouses was unconstitutional. Therefore it would appear that the principles in case law are relevant today in circumstances where matrimonial property issues between spouses are not governed by legislation, and also to property disputes between co-habitees and third parties. The difficulties which arise in relation to deciding in what circumstances a beneficial interest may arise have largely centred on assessing the worth or suitability of the various types of contributions. ...read more.

Middle

There is definitely space for improvement in both approaches, and I believe maybe a compromise somewhere in between these to approaches would lead to a clearer and more flexible approach by the courts. Ireland, Indirect contributions. Indirect contributions are contributions made to the household which do not include the purchase price of the property or repayments of the mortgage. The law in this area has been unsettled for some time bur now appears to be well established and clear. During the 1970's and 80's there was an influx of case relating two this and from this two distinct approaches have appeared. The first approach was illustrated by Keane J7 where he established that there must be evidence of a common intention that indirect contributions will give the contributor a share in the beneficial interest in the property before the court would make such an order. The next approach can be found in the judgement of Finlay P in W. v. W8. The facts of the case were that the wife claimed indirect contribution on the grounds that there a home which was a working farm, was maintained and improvements made by her, this was rejected by the courts, she also claimed that her contribution on the farm allowed for payments on the mortgage to be made. ...read more.

Conclusion

The Canadian Unjust Enrichment approach, relies on a constructive trust theory, and is best summarised in the words of Dickson J17. "For the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason, such as a contact or disposition of law for Enrichment". The Australian 'unconscionability' doctrine is very similar to Lord Denning's new model. Which is of no use to the idea of improving the system. But in New Zealand the reasonable expectations doctrine was created. Although similar to the Canadian approach it is still worth mentioning. In Daly v. Gilbert.18 The defendant had made it clear that she was unwilling to share the ownership of the disputed property. None the less her partner made several contributions in the form of labour materials, and carpeting etc. Hammond J. held that, while there had been no "reasonable expectation" of an interest in the property, it was nonetheless possible for the claimant to obtain a monetary remedy under the law of unjust enrichment. He upheld the claim in relation to the building work but not the carpet and curtains.19 In conclusion I feel the Irish approach is far superior to the English in a lot of ways, and reform is needed more so in that jurisdiction, possibly an application of the reasonable expectations doctrine or possibly a contribution from the Irish approach would lead to more fairness of the approach in England. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. The nature of the equitable is a correction of the law where it is ...

    the final focus in this discussion,, here the areas that shall be looked into will be some of the equitable remedies and how they have changed and also a mention on new remedies that have been introduced into the law of equity.

  2. Critically compare and contrast the extent to which judges in civil law jurisdictions, (such ...

    In order to avoid conflicts that may arise out of interpreting statutes, there are what are known as the three basic "rules" which are used by judges to interpret them. They are as follows: 1. The Literal Rule; 2. The Golden Rule; 3.

  1. "Instead of clarifying the law on foresight and intention, the judgement in Woollin has ...

    This sentiment was echoed in the recent case of R. v Hayes4. An example often referred to in order to demonstrate such an occurrence is the example of a person who places a bomb on board an aeroplane, with the intention of destroying items on board which he himself has insured.

  2. Should Tribunals be Abolished, Reformed or are they a Desirable Means of Resolving Disputes?

    This is an example of cases where money and time was saved in the deliverance of justice. Tribunals can potentially be an effective method of resolving disputes, however at times tribunals are not particularly quick. Although the tribunal system is on a whole much quicker than courts, the alacrity is overestimated.

  1. Intellectual Property Law.

    the design of the dress, always notice the name of our products...any unwary may make us fall foul of third-party rights in property unconsciously. Then is there anything we can use freely? The answer is 'yes', the public domain can, this notion is commonly regarded as a bulwark against excessive

  2. Intellectual Property Law.

    copyright law there must be taken into account not just the statutory provisions of the 1988 Act, but also all relevant case law and the rationale of judicial decisions. According to Jane Ginsburg1, 'originality' is synonymous with authorship, but the layman's concept of originality is not on par with the legal meaning which designates a 'minimum of personal creative activity'.

  1. Constitutional and Administrative Law - Compare and contrast Lord Denning's judgment in the Court ...

    The second part of the rule qualifies the first and states that this lawful suffering cannot occur "except for a distinct breach in the law": this reinforces Dicey's proposition that the executive (i.e. the government) must operate within a framework that is superior to the actions of its officials.

  2. Compare and contrast the prosecution of witches in Scotland and England.

    For example, crop failure may have been the result of a change in climate and may have had nothing to do with a curse whatsoever. This occurred in both Scotland and England. Scotland had a much more ruthless policy towards witch-hunting and witch prosecutions than did England.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work