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: kathrine.galloway@jcu.edu.aublog: http://katgallow.blogspot.com.au/