‘Sexist’ law allowing only men to pass property to their family still being used – despite being abolished

Law expert Alysia Blackham has found that the Presumption of Advancement (PoA) is still being invoked in courts despite Parliament voting to abolish it in 2010

A ‘sexist’ archaic law which allows men but not women to pass down property to their family is still being commonly used, it has been revealed.

Parliament vote to abolish the Presumption of Advancement (PoA) in 2010 as part of the Labour Government’s commitment to European equal rights laws.

But a Cambridge University law expert has found it is still being invoked in courts as its abolishment has not yet been brought into force.

The sexist law assumes men but not women intend to give property to family.

When a man suddenly dies with no recorded evidence of where a gift or property should go the PoA assumes ownership of it goes to a spouse or child.

This is considered part of his “paternalistic duty” by archaic legal precedent.

But when a woman dies the UK law resorts to the ‘Presumption of Resulting Trust’.

This means that a spouse or child is not given full ownership in equity and instead are deemed to be merely ‘holding’ property for the female owner, or their estate.

The law, which was abolished in section 199 of the Equality Act 2010, has been labelled as a pre-Victorian “hangover”.

Alysia Blackham, from Cambridge University’s Faculty of Law, says the law is a “toxic” symbol and a “strange legal hangover from a different age.”

She believes the Coalition may have been frightened of angering Conservative Party Eurosceptics.

She said: “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 section 199, meaning the government can continue to drag their feet on this issue.

“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.

“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, Ms Blackham cautions that legal equality is problematic in an unequal society.

While women wish 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.

She added: “Arguably, if the law is equal then it’s indirectly discriminatory because property and financial asset acquisitions on a societal level are not.”

Ms Blackham found the PoA rule had been raised in 21 cases since Parliament voted to abolish it in 2010.

This shows 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’ – just flagging its continued existence – but in two cases it was actually argued and rebutted, and in one case even applied.

Ironically, PoA is often invoked to argue for the benefit of the women involved in the given case.

In one case (O’Meara v Bank of Scotland PLC) the rule enabled a woman to keep money that would otherwise have gone to pay off her husband’s bank loan.

PoA stems from a branch of law called ‘equity’, originally set up to soften any perceived “harshness” resulting from the common law.

The research is published today(Weds) in the journal Trusts and Trustees.


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