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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.
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