Presentation from the Modern Studies in the Law of Trusts and Wealth Management, Singapore, 30 July 2015.

1. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Justifying Proprietary
Interests
Relational Intention in Intimate
Partner Constructive Trusts
Kate Galloway
James Cook University, Cairns, Australia

2. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
property
Family
law
StatusTrusts
Spousal
property redistribution
distribution
redistribution

3. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Married Women’s Property Acts
Separate estatesCoverture

4. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
But… women’s financial capacity
hampered
Pay
gap
Unpaid
caring
Taboos

5. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
No ‘palm tree justice’

6. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Claims ‘whether by spouse or stranger’
are treated alike

7. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Elements of intimate partner trusts
Intention Contribution

8. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Intention: public vs private

9. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Gendered financial dealings (Pahl)

10. 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)…

11. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Nedelsky: recognition of ‘nested
relationships’

12. 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

13. 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)

14. 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

15. 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)

16. 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

17. 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

18. 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

19. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Offers alternative reading of the cases

20. 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

21. 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

22. 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

23. 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)

24. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
Transaction  relations
Intention
RelationshipProperty
Source of rights

25. MODERN STUDIES IN THE LAW OF TRUSTS AND WEALTH
MANAGEMENT: THEORY AND PRACTICE
e: kathrine.galloway@jcu.edu.au
blog: http://katgallow.blogspot.com.au/