To what Extent Are Men and Women Treated Differently in the Context of Equitable Remedies - Research Paper Example

Equitable Remedies The ancient principles of equity possess considerable flexibility, which makes it possible to adapt these principles to a society,whose values and requirements are never static. Equity was believed to provide justice for women, in some areas, via the Chancery courts and Requests courts. These courts recognised some of the rights of women, which had been ignored by the common law. The common law courts were partial to the doctrine of Femme couverte, which implied that married women’s rights were subsumed into the rights of their husband, consequent to marriage1. Although equity courts upheld the rights of women, it could be contended that these courts failed to invoke equity, as a notion that would support impartial behaviour towards women2. Despite the fact that the equitable courts sought to assist women, they proved to be unequal to the task of providing a forum for expressing the injustice being done to women. Despite the fact that equity, commonly, favours equality, contributions without exception, do not entitle a spouse to obtain a 50% interest in the matrimonial property. It has been established that such interest would be proportionate to the contribution made by the claimant3. Consequently, if the contributions had not been equal, the share will also be unequal. Constructive trust has retained its status of a substantive institution, in England. However, this requires that there should be no confusion between obligation and ownership; and the debtor creditor relationship should not be transformed into that of cestui que trust and trustee4. However, a change in attitude is discernible in the attitude of the judiciary. Although, constructive trust cannot be restricted to disputes emanating from a fiduciary relationship, there is considerable confusion regarding the circumstances that produce it. There is also some confusion, regarding the extent that constructive trust can be utilised as equitable remedy, in order to enforce the rights provided by law5. A constructive trust is generally to be found, wherever there is a fiduciary relationship. For instance, a trustee could abuse his position to realise a profit for himself. In addition, a constructive has also been seen to exist, if a person with information regarding an existing trust obtains title to that trust property. If the court is of the opinion that the pertinent property is to be restored, it merely thrusts a constructive trust upon the recipient6. On occasion, the constructive trust has been deemed to a remedy, for unjust enrichment. This was demonstrated in several cases, such as Babrociak v Babrociak7. The notion of constructive trust has emerged as a very important device for the courts. Subsequent to the advent of the constructive trust, in the equity courts; men were much disadvantaged in cases of separation. Such disadvantage was on account of the courts deducing common intention, based on the circumstances of the case. This proved to be inequitable, in respect of the male partners, in several instances. In some cases, where women had displayed infidelity and fraudulent behaviour, the courts had granted benefits to them; which was grossly unjust towards the male partner. The decisions in Pettitt v Pettitt8 and Gissing v Gissing9 provided a comprehensive review of the law relating to marital separation, specifically in respect of the manner in which the matrimonial property was to be disposed. Lord Denning extended this review to cover separation in instances of common law relationships, by means of his ruling in Cooke v Head10. There is no gainsaying the fact that equity favours women to the maximum extent possible. In Clark v Clark an extremely devious and immoral woman completely overwhelmed and restricted the movements of her much older husband. In fact, she had married that person, in order to acquire his property; and she commenced to live in sin with a paramour. However, in the divorce proceedings a huge amount was awarded to this veritable modern day Jezebel; and the amount awarded was merely reduced by the Court of Appeal11. This shows the almost blind favour being extended to women, by equity; and one could safely accuse equity of being seriously prejudiced against men and their interests. Equity failed to provide the same measure of assistance to women, and its intervention was at best inconsistent. The establishment of a trust, subsequent to marriage, provided the necessary protection to women from the better sections of society. There was no such proviso, in respect of the women from poor families, and these women had to resort to the common law12. In the past, English jurisprudence had been inequitable towards women, especially married women; and equity attempted to assuage this deplorable situation. The eminent English jurist, William Blackstone, indulged in a measure of euphemism, in this context, by contending that the legally inferior status accorded to a wife was in reality to her advantage13. Sir William Blackstone, the eighteenth century British jurist and legal luminary, had established the legal concept of Femme couverte. Under this concept, the rights of a woman were deemed to have been merged with that of her husband, immediately upon her marriage14. The legal existence or persona of a woman, ceased to exist upon her marriage; and it was integrated into the person of her husband. According to Blackstone, upon marriage, a woman would come under the protection of her husband15. This was deplorable in the extreme, and constituted chauvinism at its ugliest. Equity, in substantive law, connotes the authenticity of the transactions that transpire between individuals. This specific perspective was responsible for the recognition offered by it to trusts, whilst the common law had declined to countenance the existence of a beneficiary of a trust. Moreover, the common law had refused to establish any remedy, whatsoever, for the breach of a trust16. The equity courts were found to be more willing to accept suits of married women to claim third party rights in property. This was in direct contrast to the common law courts, which would categorically refuse to entertain such claims17. The courts of equity utilised the concept of the trust, to engage in considerable judicial creativity. The trust, per se, had burgeoned from explicit agreements between parties, to instances, wherein their demeanour had caused the courts to deduce or impress a trust18. Thus, equity constituted a set of rules that functioned autonomously, and without any bearing on or relation to the common law. Until the end of the 19th century, there were separate equity courts; and a plaintiff who was desirous of obtaining equitable and legal remedies had to initiate legal action in separate courts. The result was significant delay and expenditure19. This extremely distressing situation was rectified with the enactment of the Judicature Acts of 1873 and 1875. These statutes established courts, wherein disputes related to equity and common law were heard. The Common Law Procedure Act 1854 had provided some relief, as it had empowered the common law courts to award equitable remedies20. Moreover, the Chancery Amendment Act 1858 (Lord Cairns’ Act), had served to provide the Court of Chancery with the power to award damages. This allowed an aggrieved party to seek damages and an injunction from the very same court21. In Lloyd’s Bank v Rosset, Lord Bridge ruled on the case, under two important legal principles. He stated that if the role of the female spouse in the relationship of cohabitation had been limited to that of raising the children and other domestic activities, then such person could not claim any property adjustment22. In addition, if the woman had not made any contribution towards the capital value of the house, then also the woman was precluded from staking any claim in the house, in the event of the breakdown of their relationship. In the initial stages, after marriage, the legal existence and identity of a woman is integrated with that of the husband, under the principle of marital unity. Under this concept, a married woman cannot own property in her name. Since, she has no legal existence, she can neither sue nor can she be sued. She has no rights over her children; and a married woman is not entitled to her own earnings23. This is not the case with unmarried women. Although they did not have the right to cast their vote, during elections, their legal existence remained intact, and they had legal capacity. Therefore, the status of wife is that of a legally disabled person24. Thus, women were compelled to face certain disabilities after marriage. Common law had failed to adequately address these shortcomings. However, women from wealthy families were able to establish trustees to protect their property; and they were entitled to specify the way in which the property could be employed for their sole and separate purposes. The husband was not permitted to have any access to that property, and he could not make use of the property to repay his debts. In case, the marriage ended in judicial separation or divorce, then a number of problems relating to property would come to the fore25. Modern woman fought against these feudalistic and grossly unjust views. As such, by the 19th century, many women’s movements came to the fore, which demanded suffrage and property rights for women. This was a bold step, on the part of women, and would have been impossible to even imagine in the England of the 17th century26. Historical studies, in respect of the property of women, include issues, like the right to vote and participate in political campaigns. Such rights were generally denied to women in the past, and women were never accorded their rightful place, during the various periods of human development. Women’s position in the society, failed to change appreciably in any of the societies. Women, irrespective of the social strata or the epoch to which they belonged, were compelled to countenance a more or less similar legal position, in respect of marriage and inheritance. The court probate orders and documents relating to court proceedings provide a deep insight into the manner, in which modern women fought against legal restrictions, in the initial stages, so as to hold property27. The following case law reveals the attitude of the courts, while dealing with the issues of equitable remedies. In Re Coats’ Trust, a sum of money was to be set aside, as funds for a trust, which was backed up by a declaration of trust dated 10 June 1946. It was specified that the income from these trust funds could be utilised to defray the expenses of a priory, provided these were of a charitable nature. In the event of the purposes of the priory not being of a charitable disposition, the funds were to be expended for the purposes of the Convert’s Aid Society28. This decision was not in favour of the plaintiffs, even though they were women. A group of cloistered nuns were the constituents of this priory; and these nuns had dedicated their lives to spiritual activities, such as meditation and self – sanctification. As such, they had confined themselves to the convent; and had ensured that they did not engage themselves, in any activities that were external to their convent29. In order to determine the effect of the declaration, the trustees sought the advice of the learned court. It was held by the court that as the activities and objectives of the priory were not of a charitable nature, the trustees could deploy the trust funds for the purposes of the Converts’ Aid Society30. Their Lordships were of the opinion that no charitable work was being performed by these nuns. Similarly, in another case, the House of Lords had to consider a gift of £500, made to a priory of Carmelite nuns. This priory consisted of nearly twenty cloistered nuns; and these nuns were engaged most of the time, in contemplation and intercessory prayers. Save for these activities, these nuns did not engage in any outside activities31. The House of Lords held that the priory was not engaged in charitable works, because it did not have any contact with the external world. The trustees argued that the intercessory prayers performed by the nuns could be of immense benefit to the outside world, as detailed in the Catholic faith32. However, the House of Lords refused to accept their arguments, as this contention could not be established by legally valid proof. The Law Lords further stated that the specified benefit was vague and intangible. Moreover, the mere piety of the nuns would not generate any benefit to others. In addition, the House of Lords refused to accept the argument that the priory being open to all women, was to be treated as being similar to an educational institution33. The House of Lords held that the priory, or any educational institution which required its members to withdraw from the world, and also failed to maintain any record about regarding their scholastic pursuits, could not be deemed to be a charitable entity. In re Caus, it was argued that under the beliefs of any religion, the performance of any rites or practices for the benefit of the public should be accepted as legally charitable; however, such rites had to conducted in the presence of the public34. This was the gist of several decisions, like those in O’Hanlon v Logue35. It is not equitable on the part of the courts to decide that an event is charitable, based on whether its activities involve the public. Unjust enrichment is a very important concern of constructive trust. This notion had been accorded considerable importance, in Anglo – American writing, and this trend had been in existence for hundreds of years. In Moses v Macferlan, Lord Mansfield had opined that the main principle in such cases was that the defendant, in accordance with the circumstances of the case, was required by equity and natural justice to refund the money36. In this case, it can be deemed that equity supports natural justice irrespective of gender. In Hussey v Palmer, the plaintiff repaired to the residence of her daughter and son – in – law, and whilst in that place, she defrayed the expenditure incurred in constructing an additional bedroom to their dwelling. After some time, the plaintiff was unable to live with these people, and therefore left their house. Thereafter, she filed a suit, in order to reclaim the money spent by her on the extra bedroom37. Whilst passing judgment, Lord Denning ruled that there was a constructive trust. In the cases of Eves v Eves38 and Grant v Edwards39, the female cohabitants received interest under constructive trust. Specifically, in Eves v Eves the male partner had deliberately misled the female partner into believing that the property would jointly belong to them. However, the female partner’s name was not included in the title to the property40. At the dissolution of their marriage, the female partner was given a share in the property, even though her name had not been included in the title to the property. This does not favour the male partner. In Grant v Edwards, the male partner did not include the name of the female partner, as it could adversely affect the amounts she was claiming in her divorce proceedings. Subsequently, the male partner made payment towards the mortgage instalments on the property. At the time of their subsequent separation, the court awarded her a substantial share in the property41, although her name was not included in the title and she had not made any significant mortgage repayments. This decision is definitely unfavourable to the male partner, in such proceedings. In these cases, equity has depicted partiality towards the female partner. The courts had taken the perceived common intention of the partners, into consideration, and decided in favour of the women. In Barclays Bank Plc v O’Brien, Lord Browne-Wilkinson had stated his opinion regarding the disadvantages of married life, particularly for women, and how modern wives were deprived of their independence due to the marriage institution. Women had enjoyed special protection, under equity, in the context of their surety transactions42. His Lordship stated that the law of equity attributed special tenderness towards women. This situation helped wives to easily establish that undue influence had been brought to bear upon them by their husbands. Moreover, married women were significantly more vulnerable, to be subjected to undue influence, in comparison to other members of society. The law accords such tenderness, because of the risks entailed in living with husbands and other issues, such as exploitation, emotional influence and breach of trust. The O’Brien case demonstrated the narrowing of the defence towards the husband. This led to the assumption that courts were more willing to extend the application of undue influence to other categories of relationship, in which emotional ties played a significant role. Special tenderness is a difficult and complex concept, and Lord Browne acknowledged the existence of sexual and emotional ties between the parties to this case. He recognised that these ties could have forced the wife and put her in a situation, where opposition to the wishes of her husband could have resulted in a breakdown in their relationship43. This situation generates the impression that fearful wives, easily fall prey to the greed and immorality of their husbands, in surety transactions. At this juncture, the law of equity protects women. The rights of the bank will be effective only if the wife receives independent legal counsel, in respect of the effect of surety transaction made by her, in the context of the debts of her husband. In order to keep its rights in force, the bank must have explained the significance of the documents on which her signature had been obtained. In the absence of such explanation, the bank cannot invoke its right of recovery against the wife, for her stood surety. The subsequent cases further strengthened the wives’ position in surety transactions. Ultimately, it led to a situation, in which women were provided with special treatment as vulnerable members of society44. Special tenderness towards women will be tantamount to differential treatment for women; and this may extend to other areas of equitable remedy. Instead of providing special tenderness, women must be provided with practical help and financial reimbursement. That will prove to be more beneficial to women. From the above discussion it can be concluded that the Equity courts do not favour men in the majority of the cases relating to separation. References Amy Louise Erickson, ‘Women and property in early modern England’, Taylor & Francis, 1993 Barclays Bank Plc v OBrien (1994) A.C. 180 Babrociak v Babrociak (1978), 1 R.F.L. (2d) 95 (Ont. C.A.) Clark v Clark (1999) 2 FLR 498 Cooke v. Head, (1972) 2 All E.R. 38 Eves v Eves (1975) 3 All ER 768 Gissing v Gissing (1970) 2 All ER 780 Grant v Edwards (1986) Ch. 638 Hussey v Palmer (1972) 1 W.L.R. 1286 Lloyd’s Bank v Rosset (1991) 1 AC 107 Marjorie Keniston McIntosh, ‘Working women in English society, 1300 – 1620’, CUP, 2005 Mark Fortier, ‘The culture of equity in early modern England’, Ashgate Publishing Ltd, 2005 OHanlon v. Logue([I906) I L. R. 247 Pettit v Pettit (1969) 2 All ER 385 Pettkus v Becker (1980) 2 S.C.R. 834 M. Wilkie, R. Malcolm, & P. Luxton, The nature of equity and the law of trusts, 5 December 2007, [online] [23 January 2010] Moses v Macferlan (1760) 2 Burr 1005 at 1012 (97 ER 676 at 681) Rebecca Mead, Ladies First, 6 June 2005, [online] [23 January 2010] Re Coates’ Trusts Coates v Gilmour (1948) Ch 340 (CA) (1949) AC 426 (HL) Re Caus (1934) Ch. 162 Sarah Wilson, ‘Todd & Wilson’s Textbook on Trusts’, Oxford University Press, 2007 Susan Scott-Hunt & Hilary Lim, ‘Feminist perspectives on equity and trusts’, Routledge Cavendish, 2001 Read More