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MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Justifying Proprietary Interests
Relational Intention in Intimate Partner Constructive Trusts
Kate GallowayJames Cook University, Cairns, Australia
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
property
Family law
Status Trusts
Spousal property redistribution
distribution
redistribution
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Married Women’s Property Acts
Separate estatesCoverture
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
But… women’s financial capacity hampered
Pay gap
Unpaid caring
Taboos
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
No ‘palm tree justice’
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Claims ‘whether by spouse or stranger’ are treated alike
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Elements of intimate partner trusts
Intention Contribution
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Intention: public vs private
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Gendered financial dealings (Pahl)
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Violence, oppression
Pettitt v Pettitt (UK)Hoffman v Hoffman
(NZ)Hohol v Hohol (Aust)
Eves v Eves (UK)Peter v Beblow (Can)
Pettkus v Becker (Can)Murdoch v Murdoch
(Can)Stack v Dowden (UK)
Walker v Hall (UK)Cossey v Bach (NZ)…
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Nedelsky: recognition of ‘nested relationships’
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Nedelsky: what kinds of laws/norms help structure constructive relationships?
In contrast to liberalism’s
autonomous individualism;
autonomy is best understood in
relational terms
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Nedelsky’s broad view of law, relationships
Macneil’s relational contract
Possibilities for property (trusts)
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Indicia of transactional exchange (Macneil, 1974)
Express promise Formal communication
Sharp commencement
Certainty of terms
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case study: Muschinski v Dodds (Aust)
Express promise
• His promise to pay in future sufficient as consideration in its own right
Formalities • Solicitor’s advice
Transaction
• Sufficient evidence to support intention expressed on legal title• (Her evidence largely relational; excluded from justifying proprietary
interest)
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case study: Pettkus v Becker (Canada)
Express promise
• Her enormous contribution labouring can only be understood in terms of an intention to hold a beneficial interest
• Note value attributable to her labour
Transaction
• Sufficient evidence to support intention to grant beneficial interest
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case Study: Stack v Dowden (England)
Formalities
• She kept extensive records• Unusually for relationship, separate
finances [mark of individualism]
Transaction
• Sufficient evidence of separate estates to establish an intention as to her beneficial interest
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Contrast indicia of relational exchange (Macneil, 1974)
Informal communication
Gradual commencement
Tacit assumptions
Internally motivated
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Offers alternative reading of the cases
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case Study: Burns v Burns (England)
Significant age gap
Unmarried
1960s
She was pregnant with 2nd child
She was vocationally
unskilled
Decision to buy house
Relational intention
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case Study: Baumgartner v Baumgartner (Aust)
Abusive control over $
Intimation of violence
1970s-80s
His refusal to marry
Child
Decision to purchase house
Relational intention
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Case Study: Cossey v Bach (NZ)She lived in 2BR
unit with 3 children
2nd husband jailed: sexual abuse of
daughter
In debtViolence
‘wanted a home just as they had in
the past’Relational intention
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Source of rights?What kinds of laws help structure
constructive relationships? (Nedelsky, 2012)
Commitment & interdependence (Wong, 2012)
Familial trust (Gardner & Davidson, 2011)
Dependency is core dimension of the relational self (Nedelsky, 2012)
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
Transaction relations
Intention
Relationship Property
Source of rights
MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH MANAGEMENT: THEORY AND PRACTICE
e: [email protected]: http://katgallow.blogspot.com.au/
