Refusal to abolish ‘archaic’ rule means gender discrimination is still law in the UK

An antiquated legal rule based on a principle of gender discrimination in property and inheritance rights is still being invoked in UK courtrooms, despite parliament passing an act to abolish it five years ago, research from a Cambridge legal academic shows.

The ‘Presumption of Advancement’ (PoA) assumes that property transferred from men to their spouse or child – but not from women to their family – is intended to be a gift, and is a pre-Victorian “hangover” abolished in section 199 of the Equality Act 2010 passed by the then Labour government. However, this section was never ‘commenced’ or brought into force after the change in government to the Conservative-led coalition.

As the original driver for the legal change was compliance with the Seventh Protocol to the European Convention of Human Rights – the section of European law that deals not just with gender equality but also rights for immigrants and prisoners – the Coalition government may have failed to commence any legal change for fear of being seen to capitulate to Europe and risk angering Conservative Party Eurosceptics, says Alysia Blackham, who conducted the research.

“In response to a Freedom of Information request, the Ministry of Justice has indicated that no final decision has been made as to whether to commence s 199, meaning the government can continue to drag their feet on this issue” said Blackham, from Cambridge University’s Faculty of Law.

“This is one of those strange legal hangovers from a different age. It’s problematic given the law is generally supposed to give equal rights to women and men, irrespective of gender, and Government are not addressing it. As a symbol, PoA is highly sexist; and its continued existence makes gender discrimination part of the law of the land,” she said.

Blackham, whose research on PoA is published today in the journal Trusts and Trustees, also contacted the Government’s Equalities Office, who held no information regarding the issue.  

PoA stems from a branch of law called ‘equity’, originally set up to soften any perceived “harshness” resulting from the common law. Equity was formerly under control of the Lord Chancellor, but has long been administered with the common law.

In cases without recorded evidence of what the parties intended, usually due to sudden death, the ‘Presumption of Advancement’ assumes ownership of a gift of property passes to a spouse or child – but only where the gift was made by a man, considered part of his “paternalistic duty” by archaic legal precedent, says Blackham. 

For women, PoA generally doesn’t apply, and UK law resorts to the ‘Presumption of Resulting Trust’ – meaning that, while property is passed on at law, a spouse or child is not given full ownership in equity. Instead, they are deemed to be merely ‘holding’ property for the female owner, or their estate.

Blackham found the PoA rule had been raised in 21 cases since Parliament voted to abolish it in 2010, showing that – while most courts do not need to use it – the out-dated rule is still used to argue property rights and rights of inheritance. Most of these examples were ‘obiter dicta’, says Blackham, essentially just flagging its continued existence; but in two cases it was actually argued and rebutted, and in one case even applied.

Perhaps ironically, PoA is often invoked to argue for the benefit of the women involved in the given case, says Blackham. In the one case (O’Meara v Bank of Scotland PLC) that applied the rule, it enabled a woman to keep money that would otherwise have gone to pay off her husband’s bank loan. 

Part of the problem, says Blackham, is that, while we might wish all to be equal in the eyes of the law, statistics show that women aren’t equal when it comes to finances – not least in respect of the lingering gender pay gap. So, given that society remains unequal, should the law be tolerated despite its out-dated paternalistic origins?

No, says Blackham. “We need to get rid of PoA. As a symbol it’s toxic, but we can’t just leave a hole in the law – otherwise the presumption of a ‘resulting trust’ kicks in and no one of either gender will get the security of passing on property. Australia has expanded PoA to include women, so the law now applies equally, which is probably the best option.”

However, Blackham cautions that legal equality is problematic in an unequal society. “Arguably, if the law is equal then it’s indirectly discriminatory because property and financial asset acquisitions on a societal level are not.” 

Inset image: Alysia Blackham