Equitable presumptions...

I am currently revising for my midsessional tests for this term. I'm doing a graduate diploma in law which consists primarily of learning by rote with little time or scope for creativity or opinion [it's definitely a means to an end rather than a course to take for fun]. However today I've been reading a little about equitable presumptions when people make voluntary transfers of property or contribute to the purchase price of property bought in another's name. Generally equity will presume that the person did not intend to make a gift, and therefore their contribution will be viewed as being held on a 'resulting' trust by the person who currently possesses it. This can be rebutted by any proof that a gift was intended, which is all well and good.

The silliness comes with so called presumptions of advancement. These are a small class of transfers where equity will presume that a gift was intended. This presumption comes about when a husband gives something to his wife, a father gives something to his child or to a person to whom he is in loco parentis. This seems totally bizarre. It appears from further reading, particularly in case law and comment, that this presumption is very weak and easily rebutted. Nevertheless it is still present in English law, and continues to be relied upon in the courts.

The gender bias is obvious, and originates from paternalistic Victorian society. The effect is that should a man give something to his wife it will be presumed to be a gift, and the burden of proof to demonstrate that it is not rests upon the man. However, should a wife give something to her husband it is presumed that it was not intended as a gift, and the burden of proof to demonstrate that it was rests upon the man. This benefits noone and is completely anachronistic ... it suggests that it remains a husband's role to financially support his wife and child which is far from the reality of modern life in England. Furthermore it has the potential to result in dramatically different results in cases where society no longer views such distinction. Husbands are expected to provide for their wives, wives not expected to provide for either husband or child, and cohabiting couples completely out of the equation.

Despite the obvious fact that this presumption is easily rebutted, it remains quite shocking that it is still in place. During a seminar on the topic discussion took place over how it should be changed. Some suggested that the presumption should be abolished completely and every case of voluntary transfer should begin with the presumption that no gift was intended, with the burden of proof lying with the individual suggesting that it was a gift. At the other end of the scale it was suggested that there should always be a presumption of advancement with proof needed that no gift was intended! This seems a very idealistic view of society and I'm far too cynical to accept that as a good starting point. Furthermore I feel that if it were to become less gender specific and there was a presumption of advancement between husband/wife either way that this would still be somewhat anachronistic. I do lend my boyfriend money and vice versa, and sometimes it is intended as a gift and sometimes it isn't, but I would never want it to be presumed that it was a gift. I'm an independent person, I have my own bank account, and hope to pursue my own career. I would not want to lose the presumption of financial independence if I were ever to marry...however 'lacking in romance' that may be.

I think that the only situation in which a presumption of a gift should ever apply is between parent and child. Note parent, not father! I think that if a transfer of property in this relationship is not intended to be a gift it is made abundantly clear, and could easily rebut the presumption.
However rarely this presumption is used I still find it strange that it remains part of our law, and would feel much more comfortable if it were changed. It seems that is unlikely to happen despite the general feeling of dissatisfaction with the system.