The Gazette 1985

GAZETTE

APRIL 1985

The Family Law Act 1981 — Yet Another Pandora's Box?

by Albert Power, B.C.L., LL.M., Solicitor

T HOUGH greeted at first by conveyancers with some apprehension, the Family Law Act 1981 seems to have attracted little commentary since its enactment. As set out by its long title, the purposes of the Family Law Act 1981 are: 1. To abolish the actions of criminal conversation, harbouring and enticement, and breach of promise to marry; 2. To provide for gifts to and between engaged couples; 3. To validate the consent of a minor spouse for the purposes of the Family Home Protection Act 1976; 4. "and to provide for related matters." Items 1 and 3 are dealt with en bloc by sections 1, 2 and 10, respectively. Section 9 directs that the time limit for instituting proceedings under the Act shall be three years from the date of termination of the agreement to marry. Section 2( 1) states "An agreement between two persons to marry one another . . . shall not under the law of the State have effect as a contract. . . ." However, nowhere in the Act is there any indication that the phrase "agreement to marry" is synonomous with "an engagement" in the accepted sense. In fact, the only reference to "persons who have been engaged to be married" appears in the long title. Overall EfTect of the Act Most of the difficulties of construction in this Act stem from its provisions about gifts to and between engaged couples. Section 3 provides that a gift of property, as a wedding gift, to either or both parties is presumed to be to both of them as joint owners and returnable "if the marriage for whatever reason does not take place." On the other hand, section 4 provides that a gift of property from one party to the other is only returnable if the marriage does not take place for any reason other than the death of the donor. The joint effect of sections 6 and 7 is to enable the court "make such order (including an order for compensation) as appears to it just and equitable in the circumstances" where either one, or both, of the parties who have agreed to be married is benefited, or some other party impoverished, as the result of a gift made to the engaged couple. In certain circumstances the application of sections 3 and 4 can produce strange results. Take, for example, an engaged couple. As a wedding gift the woman's father gives the pair a site on which to build a house. The man makes several gifts to his fiancée, including an engage- ment ring. The man dies. Applying sections 3 and 4 of the Family Law Act 1981, the woman could keep all the gifts made by her fiancé to her (since it was his own death that

terminated the agreement to marry), but her father could claim back the site he had given as a wedding present (since the marriage had not taken place "for whatever reason"). If however, it happened that the father did not claim back the site, or did not claim it back within the requisite limitation period of three years, then the entire legal estate would vest in the surviving fiancée, as joint tenant, by survivorship. 1 The Family Law Act 1981 nowhere indicates whether "property" is to be limited, in any given context, to either personalty or realty, and there is nothing in section 3 to suggest that it should be so limited. Hence, in the above example, if the surviving fiancée had attempted to convey the property within three years of the initial gift, such conveyance would have been void, or at best voidable: applying sections 3 and 9, her father would still have been entitled to claim it back. Arguably, therefore, constructive notice is now raised in every case involving a conveyance of property less than three years after a voluntary disposition of it. Potential Implications of Section 5 Sub-section 1 of this section, quoted in full, reads: "Where an agreement to marry is terminated the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall apply in relation to any property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force as they apply in relation to property in which either or both spouses has or have a beneficial interest." Sub-section 2 applies section 12 of the Married Woman's Status Act 1957 to disputes between formerly engaged couples over property "in which either or both had a beneficial interest". However, it is sub-section 1 which, despite being somewhat prolix, seems richest in implication. a) The Presumption of Advancement For present purposes this concerns a gift from husband to wife, or parent to child, in which there is a presumption against a resulting trust in the donor's favour. Nowadays, the presumption of advancement is rather an outmoded concept. Lord Diplock in Pettitt -v- Pettitt 2 described it as being based upon inferences "which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era." Furthermore, this presumption does not apply from wife to husband, which runs counter to the reciprocal ring inherent in the phrase "rules of law relating to the rights of spouses" in sub-section 1. 169