Written by Nicolás Schuscheim, a third year Politics, Philosophy, and Law (LLB) student at King’s College London. His interests lie mainly in the interplay and intertwining relationship between the law and other aspects of society, such law and its hidden stereotypes against women, minorities, and developing countries.
Unless you are thrilled by legal intricacies and concepts, case names and statute books, law lectures can be somewhat dull. Excitement runs thin for most people, particularly in core and obligatory modules concerning private law. Let’s be honest: if the Law of Trusts and Property Law were not optional, only the brave few would take them. Yet sometimes, in a lecture straddled between security arrangements and resulting trusts, some law students are taken aback by what the lecturer is dictating. They think wait, did the lecturer just flat-out say that the black and white letter of the law is downright sexist? It’s true; beyond the ambits of criminal and family law, the archaic sexist discourse in private law has remnants left behind that even today, in 2017, have yet to be extinguished.
As a result of England’s common law system, until a factual scenario comes to a court in the higher echelons of the hierarchy, or until Parliament legislates, the law remains unchanged. This means that in some obscure areas, there is no applicable legislation restricting what citizens, and the government, may or may not do. This also means that, in some areas where Parliament legislated centuries ago, no legislation has been amended, repealed, or complemented those archaic statutes, leaving certain patriarchal legislation in force. For the purposes of this article, we will look at two completely separate and non-related scenarios of the sort: (1) undue influence in the case of providing security for a bank and (2) the presumption of advancement on a gift. These terms will be explained shortly.
Before that, however, it is key to understand that both these scenarios work by way of a presumption. A presumption in law is one that arises merely by the presence of certain facts rather than by proving certain evidence or satisfying certain legal tests, shifting the burden of proof from the defendant to the claimant. In other words, if a presumption arises on the facts, instead of the defendant needing to show evidence of his innocence, the claimant will have to prove to the court that the defendant is at fault.
Undue influence is a legal doctrine attempting to prevent the exploitation of a weaker party by a stronger party; where the stronger party is presumed to have said influence, and there is a transaction that calls for an explanation, a presumption of undue influence arises. A transaction will be voidable, i.e. the parties can choose to nullify and ‘unmake’ the transaction, if completed under undue influence. The law here is attempting to regulate the improper exercise of the influence and to prevent or prohibit the stronger party from taking outright advantage of the weaker.
This presumption can arise on the facts merely by certain types of relationships. Some of these relationships give rise to an irrefutable presumption, meaning it cannot be challenged, such as that of parent-child, solicitor-client, or doctor-patient. Under these relationships, it cannot be disproven that there was influence; the only question is whether it was undue. Thankfully, that of a husband and wife can indeed be rebutted. To irrefutably presume that a husband will always have influence over his wife would not only question every potential decision undertaken in a private household, but also, undoubtedly admit in law that the wife will always be the weaker party in a marriage.
A typical factual scenario involves a married couple seeking to acquire a mortgage from a bank. The bank, for reasons of protecting its own insolvency, will ask someone to stand for surety, or to offer up their own asset as security to secure another’s loan. Let’s say it is the wife that stands for surety. In case the other person, i.e. the husband, goes insolvent the bank can simply seize the wife’s asset. Sometimes a husband – even if unknowingly – will pressure the wife into standing as surety, providing her asset as security for his loan, and exerting his undue influence upon the wife’s mind.
So let’s just assume for one second that because wives will feel pressured not to deny the husband’s wishes to provide a surety and acquire the mortgage for their family home, it is acceptable for the law to protect women. Yet in Barclays Bank v O’Brien, Lord Browne-Wilkinson attributed this “special tenderness of treatment afforded to wives” to two factors: (i) a demonstration by the wife in question that she placed full trust and confidence into the husband for financial matters (because hey, the wife could never handle financial matters), and (ii) the sexual and emotional ties between the parties providing a ready weapon for the husband to exert his influence (fine). Yet isn’t it somewhat patronizing that a presumption can arise? Isn’t it somewhat patronizing that the courts will presume the wife to be the weaker party and in flailing and desperate need of protection? In other words, isn’t it clearly sexist that the courts will presume undue influence, without requiring proof, if a husband influences his wife to acquire a surety on his behalf?
It would only be egalitarian and non-sexist in the scenario that the wife were to unduly influence her husband to provide surety for a mortgage, and in the case that the same legal considerations should abound. Otherwise, there would be clear discrimination in treatment between the sexes in these cases. In the only case where this has been treated, Barclays Bank v Rivett, the first instance court simply asked the man to ‘grow some balls’ and ‘man up’. How could the wife ever handle financial affairs? How could the husband be influenced by his wife? The Court of Appeal fared better, claiming that undue influence could potentially be proven, but it would be harder to prove. In Buckley J’s words, “as a matter of evidence, a wife may more readily persuade a court that she placed trust and confidence in her husband in relation to her financial affairs”. It’s fairly clear who the court thinks are best suited to handle financial affairs… This “tender” treatment of women is patronizing, sexist, and discriminatory.
The Presumption of Advancement
Now onto the second scenario. When property is transferred from one person to another without an explanation or reason as to why it was transferred, a resulting trust is presumed to arise: in absence of there being a clear intention for the transfer to have been gifted, the property is placed on resulting trust back to the transferor. In other words, the recipient is bound under law to return the property back to the giver, under the assumption that it was never intended to be given away. This ‘give back’ presumption can be reversed by the presumption of advancement: if the property is passed from a husband to a wife or from a father (or a stand-in parent as loco parentis) to his child without an explanation, then the presumption to return the property back will be extinguished on the basis that it is presumed that the transferor (the husband or father) must have intended an absolute gift (and hence the recipient is now the owner).
So what if, scenario one, a wife transfers property to her husband without explanation? According to Mercier v Mercier, a 1903 case, and Heseltine v Heseltine, a 1971 case. Perhaps we are waiting for a case to arise. But what if in scenario two a mother transfers property to her child without explanation? The reason for the presumption of advancement is to advance the family line, hence its name, and so, when established back in the days, could only apply to a transfer from a father to his son. And once again, obviously the family line could never advance from the mother. Is this type of think not immensely overdue? I doubt many would disagree.
A recent Supreme Court case law in 2008 (Laskar v Laskar) has suggested that the presumption of advancement is “between parent and child”, but Neuberger LJ (President of the Supreme Court) in that case fails to clearly and expressly claim an extension of the presumption to mothers. The High Court in 2010 (Close Invoice Finance v Abaowa) also suggested that the presumption of advancement now applies to mothers anyways, yet that case’s binding aspect of the judgment was based on the fact that counsel for the mother conceded that the mother stood in the place of a parent. In other words, the mother’s gift passed because she was standing in for the father. No court has ever outright stated in binding terms that the presumption of advancement will arise in the case of a mother and her child. So the courts have not helped.
Alternative two: so what if Parliament did something about it? Oh right, they tried. In 2010, the Equality Act was passed, and section 199 abolished the above presumption of advancement as a whole because of its anachronistic misogynistic features. Yay, problem solved right? Absolutely not; that section of the Equality Act, amongst others, is yet to come into force as a result of political disagreements between parties. Here we are: politics getting in the way of ridding the law of sexism once again. I mean, even the Australians extended this presumption to mothers on a federal level in 1997 (Nelson v Nelson), and at the New South Wales level in 1985 (Brown v Brown). Surely the English could do just as well.
Yes, it’s petty. Yes, it’s paying very close attention to detail. But yes, it’s important. Gender equality means 100% equality, not 99%, not even 99.9999%. These two examples may seem far-fetched, but think about it: the amounts of mortgages a wife stands surety on behalf of a couple and the amounts of unexplained gifts made from mothers to children are more than you can imagine. Sexual offense and rape law has its sexist issues, ie. section 1 of the Sexual Offenses Act 2003 in defining rape as ‘with his penis’, but to think that even the private law of England & Wales has anachronistic remnants of a bygone misogynistic era is frightening. After all, if we were to dig deep through all the legal archives, could we find more?
 Beatty v Gillbanks  9 QBD 308
 Royal Bank of Scotland plc v Etridge (No 2)  UKHL 44
 Barclays Bank plc v Rivett (1997) 29 HLR 893
 Mercier v Mercier  2 Ch 98
 Heseltine v Heseltine  1 WLR 342
 Laskar v Laskar  1 WLR 2695
 Close Invoice Finance Ltd v Abaowa  EWHC 1920
 Equality Act 2010, s199
 Sexual Offenses Act 2003, s1