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Grossi, Renata --- "The wife as legal subject in equity and commercial law" [2002] AltLawJl 66; (2002) 27(4) Alternative Law Journal 171

The wife as legal subject in equity and commercial law

Renata Grossi[*]

Married women have had a sad legal history, essentially unrecognised as autonomous individuals.

Without thinking highly either of men or matrimony, marriage had always been her object; it was the only honourable provision for well-educated young women of small fortune, and however uncertain of giving happiness, must be the pleasantest preservative from want.

Jane Austen, Pride and Prejudice.

This article is about the way wives are depicted by commercial law. Women, single and married, have always had a role in economic activities, but in the case of married women this role has always been obscured by the other roles of home maker and mother. Married women have had a sad legal history, essentially unrecognised as autonomous individuals. The extent to which this historical position is still evident in today’s representation of a wife is the central question for this article. In order to answer this, the discussion begins with a summary of the ‘past life’ of the legal subject of wife in the common law and equity. It then shifts to the way in which the wife is represented in modern law — the focus being the area of surety contracts. In at least this area it will be clear that the equity courts retain their traditional posture, not merely because of the often quoted role of equity as the protector of the vulnerable, but also because (as feminists have argued for a long time) the law is about men and the public rather than about women and the private. It will also be argued that the retention of equity’s view of the wife as one of society’s vulnerable, in need of special protection, is grounded in the fact that a wife is defined according to the law’s conscious and unconscious notion of ‘home’. This notion of the home is loaded with many emotional meanings and, while the wife is seen as the sacred icon of the home, her definition in law remains linked to these emotional and essentially traditional meanings. Because of this, it will be argued that the representation of a wife in law in the 21st century is more closely linked to the representation of the wife which existed in the middle of the 19th century than the radical changes in the content of the our laws would suggest.

This article takes arguments made in feminist jurisprudence in relation to women and the law and applies them to wives. I will be arguing that if women experience a disadvantage by the way they are represented by our laws, this is many times more true of women who are wives, and many times more true of wives who come into contact with commercial law.

The wife as legal subject in history[1]

In the middle of the 19th century, once a woman married she ceased to exist as an independent legal person and became part of her husband’s property. A wife could not have an identity in the commercial world and its law. Her ability to own property was severely limited. Even if she was considered the owner of some property she could not have control over it while she was a wife. Her powerlessness in the economy was sealed by the fact that she had no contractual capacity other than in a very limited way as an agent of her husband.

Married women’s rights to own property were determined by the common law’s distinction between real property and personal property. Generally a wife’s real property remained her own, but the husband was in control of it, the only prohibition on his control being that he was not able to dispose of it without her consent. In the case of personal property the husband had absolute ownership of it. This was true of personal property acquired before marriage as well as during marriage.

This protection of a wife’s real property is not as significant as it seems. As Holcombe[2] points out, this might have served medieval wives well, but not so in the 19th century where personal property was becoming more numerous, diverse and valuable. At this time new forms of personal property such as leasehold land, investment moneys in government funds and joint-stock companies were likely to be the possessions of wealthy women and these forms of property became the husband’s on marriage.

A wife had no contractual capacity. She could only enter into a contract as an agent of her husband. This agency could be express or implied. This meant that in the case of a contract that had been entered into on the grounds of an implied authority, it was open to the husband to escape responsibility by successfully rebutting the presumption that authority had been given. This kind of uncertainty made contracting with a married woman a risky business.

A wife’s legal non-existence extended beyond commercial law. If a wife was her husband’s property it followed that he could do what he liked with her including beating and raping her. A wife’s protection against abusive husbands was somewhat increased during the latter half of the century but the general belief continued that a husband could beat his wife ‘although not in a violent or cruel manner — not with a stick thicker than his thumb’.[3]

It also appears that a husband had an unlimited right of sexual access to his wife’s body. This right was reiterated time and again throughout the 19th century. As stated in Lord Hale’s The History of the Pleas of the Crown, ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’.[4]

Despite the conventional notions of gender roles which placed domesticity and children at the centre of women’s lives, there was no corresponding legal notion that women therefore had any special rights in relation to their children.[5] The father had the right to custody of his children; the mother had none.[6]

Given this dismal state of affairs for married women in the 19th century, it is not surprising that reform of the marriage laws was the primary focus of the women’s movement. Reforming the marriage laws was seen as a priority, even more important than obtaining the vote. This makes sense. Marriage was the central experience of the lives of the majority of women and it was the source of their powerlessness and oppression. What use was a vote to a woman who was regarded as her husband’s property?

Equity’s spin

Married women could find some protection from the harshness of this position from the courts of equity. Along with infants and lunatics, wives were considered a special group requiring protection from the equity courts. On some level this protection was given for all of the above injustices. In the case of ownership and control of property, women could have control over property by the use of trusts. Once a trust was created for her, this property was regarded as separate property over which she and her trustee had control. This trust would also enable her to have contractual capacity in relation to that separate property. Equity also recognised as her property, rather than her husband’s, gifts given from friends and lovers, and on the question of custody of children equity courts were willing to deny a father custody of his children if the welfare of the children justified it.

However this protection from equity was not without its problems. The most obvious were that realistically it was only available to the wealthy. The equity courts were expensive to access, and the whole concept of the trust was really only workable in very wealthy families where it was possible to tie up property and capital. There were deeper problems also. Auchmuty[7] argues that the protection of a married woman’s property can be seen less as a protection of her property and more as the protection of the assets of the family of origin against an interloping husband. In fact, she argues, it placed a wife in the power of male trustees and solicitors and denied her an ability to develop skills in looking after her own affairs. This view is echoed by Conway who argues that the concept of the trust was motivated by a desire to ‘design a vehicle which would safeguard inheritance in the male line, keep the estate intact for future generations and provide financial provision for other family members’.[8]

Furthermore, despite its protections, equity cannot be seen as representing women’s rights. The feminists of the time were certainly not calling for an extension of equity to all women. In so far as non legally trained women were aware of equity, they simply saw it as extending certain rights to certain women.[9] As Conway points out, in the end full legal equality was achieved ‘without the agency of equity playing a particularly prominent role’.[10]

Above we have seen two representations of married women in law. One, as represented by the common law, is that of the wife as the property of her husband, to be dealt with as the husband sees fit. The second, as represented by equity, is the wife as one of society’s vulnerable, for whom the law must offer special protection. To what extent do these representations exist today?

The wife as legal subject today — equity and commercial law

I will argue there are still two distinct representations of the wife. In common law a very radical transformation has taken place: women have achieved formal equality; they are equal to men. This equality extends to women who are married. Their legal rights (more or less) are unaffected by their marital status. They can own property, enter into contracts and maintain a legal existence separate to their husbands. In equity, on the other hand, the courts have maintained their traditional position. One area where this protection has been maintained is in the decisions concerning spousal guarantees.

For a long time a principle has stood in Australian law which means that a wife who provides security in support of her husband’s debt may be able to avoid that contract if she can show that she misunderstood the transaction in some way and that she did not receive adequate explanation of the transaction by the lender. This principle emerged from the judgment of Dixon J in Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649. He states it thus:

If a married woman’s consent to become a surety for her husband’s debt is procured by her husband and without understanding its effect in essential respects she executes an instrument of suretyship which the creditor accepts without dealing directly with her personally, she has a prima facie right to have it set aside. [at 683]

This principle became known as the special equity of wives and it received much attention and criticism in and out of courts. As Ridge explains,[11] the decision was seen, among other things, as ‘discriminatory and inconsistent with the contemporary status of women’ as it characterised ‘wives as needing special protection simply by virtue of their married status’.[12]

Interestingly the English law appears to provide similar protections while avoiding controversy. The leading case in England is Barclays Bank plc v O’Brien [1992] EWCA Civ 11; (1993) QB 109; [1994] 1 AC 180. This case establishes that the protection extends beyond the relationship of husband and wife. It also applies to cases where the surety and debtor are cohabitating. Furthermore, before a contract will be set aside there must be a legal or equitable wrong committed by the debtor in obtaining the surety’s consent to the contract, and the lender must have had some constructive knowledge of this. The focus is on the doctrine of notice. ‘A creditor would be put on notice where an emotionally or sexually vulnerable person provided security for a debtor when this was not on the face of it to that person’s financial advantage’.[13]

Browne-Wilkinson LJ rejected the special equity of wives as obscure, based on little judicial authority, and as a legal anomaly. He could not justify a legal principle which applies to only one type of person and one type of transaction, especially when the legitimate interest of wives can be adequately protected by other legal principles.[14]

It was in this context that the High Court of Australia heard the case of Garcia v National Bank Ltd [1998] HCA 48; [1998] 155 ALR 614. This was an opportunity long awaited to have a debate on the representation of wives in the law. In terms of law the majority of the High Court did uphold the Yerkey principle. Ms Garcia was not bound to the guarantee she had given in relation to her husband’s debts because she did not understand fully the extent of her liability and the bank had not fully explained the contract to her.

The majority decision was given by Gaudron, McHugh, Gummow and Hayne JJ. They asserted that the Yerkey principle has as much application today as it did in 1939. They dispute that the case represents outdated views of society and the role of women in it. Their view was that the changes that have occurred have not fundamentally altered the experience of marriage for a significant number of women. For such women, the marriage relationship can be unequal in economic and other power. Leaving this aside, however, the Justices argue that the Yerkey decision does not result from a view of wives as economically and emotionally weak, subservient, inferior and vulnerable to exploitation. Rather it is based on the view that in a marriage the two parties have trust and confidence in each other. This absolute trust and confidence means that like a well organised factory they engage in a division of labour. They put it like this:

The marriage relationship is such that one, often the woman may well leave many, perhaps all, business judgments to the other spouse. In that kind of relationship, business decisions may be made with little consultation between the parties and with only the most abbreviated explanation of their purport or effect … That that is so is not always attributable to intended deception, to any imbalance of power between the parties, or even, the vulnerability of one to exploitation because of emotional involvement. It is, at its core, often a reflection of no more or less than the trust and confidence each has in the other. [Garcia at 404]

The judges did not rule out that this type of relationship could be found outside of a heterosexual marriage. They did not rule out, therefore, that the Yerkey principle could apply to same sex-couples, and couples who were in a de facto relationship. Nor did they rule out that it could apply to husbands as well as wives. To this day, however, the law suggests that it is wives, and wives only who can take advantage of this principle.

Justice Kirby disagreed. Reiterating the arguments he had put forward when he sat on the New South Wales Court of Appeal, he argued that the Yerkey principle is ‘unacceptable as a principle of contemporary Australian law’ (Garcia at 428) for two main reasons: it is anachronistic, and it reinforces a discriminatory stereotype of a married woman. The principle does not reflect the reality of a modern marriage in contemporary Australia, it is founded on the notion that a married woman is incapable of safeguarding her own interests. He says:

Why should undergoing the ceremony of marriage make only a female partner to the relationship more needful of protection from equity than an unmarried female partner? The opposite might often be the case.
 To select marriage as a criterion of vulnerability also appears inappropriate at this stage in the evolution of personal relationships in this country. Rather than choose the fact of marriage and the sex of one party to it as an objective indication of vulnerability for legal purposes, it would seem more rational to look at all of the facts of the relationship between the surety and the borrower. So long as married women, as such, are treated as necessarily vulnerable, whatever the facts of their particular relationship, the focus of the law will remain upon a consideration which in most cases, is simply irrelevant. [Garcia at 425]

The desire to protect

It is clear that a primary motivation for the majority of the Court in maintaining the Yerkey principle is a desire to maintain protection for a group in society perceived to be in need of it. Whether this need is couched in terms of being in a vulnerable position or simply in a position of trust and confidence does not matter. The majority were direct — for a significant number of women marriage is an unequal relationship and wives are in need of protection from the law because of it.

The judges are not alone in their view. The Australian Law Reform Commission in its report on Equality Before the Law said that while the principle in Yerkey is ‘narrow and outmoded, it is an important remedy for married women’.[15]

Fehlberg, in her study of women in family companies paints a similar picture of a wife in modern times.[16] In the family business, she shows that most women emerge as powerless. This is not to say that women are not involved in the day to day running of the business. She draws the obvious and very telling distinction between involvement and power. She argues that when determining liability, the courts have tended to concentrate on the level of involvement the wife had in the company. However, once the question becomes one of power rather than involvement she finds that the family business emerges as ‘ultimately the province of male decision making … the end result is that women may be very involved in family businesses without sharing the strategic decision-making power’.[17] She concludes therefore that ‘the practical effect of the rule in Yerkey is that these features of many women’s lives are acknowledged’.[18]

In a further study on sureties Fehlberg[19] finds further support for the Yerkey principle. She shows that a wife who is asked by her husband to sign a surety contract is not likely to base her decision on legal and economic considerations, but rather, on the impact that her refusal to sign would have on the relationship. Fehlberg reports comments such as from a Mrs Innes who said, ‘If I’d had independent advice I still have had no choice…’[20] and from a Mrs Elliot who said, ‘You have a choice whether you’re going to stay married or not, and that’s really what you’re down to, isn’t it?’[21] What this study showed is that a wife’s decision in a commercial situation will be motivated less by business considerations and more by considerations of loyalty, trust and family wellbeing.

There is support, therefore, both in theory and fact for the need to offer wives in these positions some protection, but is this protection best offered via the use of doctrines which apply only to wives?

The desire to separate

Fehlberg argues that by having a principle such as Yerkey the features of a wife’s experience in this context are acknowledged. She argues that the same protection may not be available to her under the other equitable doctrines such as duress, undue influence, misrepresentation or unconscionability. In fact she shows that in the English cases the application of the O’Brien principle has resulted in decisions that favour creditors over sureties.[22] It can be argued, therefore, that to ensure absolute protection of a wife a very specific principle is needed. In answer to the criticism that a ‘wife specific’ legal principle discriminates against women and reinforces the negative stereotype of a wife, Fehlberg argues that equality is not necessarily achieved by having rule equality. Rules of special application can result in equal outcomes.[23] Regardless of whether we agree with this or not, the fact remains that the by-product of separate rules, is that women in general, and a wife more particularly, is treated as the ‘other’, as separate from other legal subjects. This has been a central argument in feminist writings. Ngaire Naffine in Law and the Sexes has put it like this:

While law purports to deal in abstract individuals, in truth it has a preferred person: the man of law, the individual who flourishes in, and dominates, the type of society conceived by law. This person is preferred in the sense that the law reflects his priorities and concerns and conducts itself in a manner which is considered, by him, to be both desirable and natural. This being is both a creature of class and a gendered subject. He is one of the possessing classes. His gender takes the form of a certain exaggerated style of middle-class masculinity: he is assertive, articulate, independent, calculating, competitive and competent. And these are precisely the qualities valued in the sort of society which law has in mind: a society which is fiercely competitive and composed of similarly self-interested and able individuals; a society which looks very much like the modern free market.[24]

In so far as women are concerned:

Consistently, women have been constructed in a fashion thought to reflect their natural place in the social order. Their traditional role is not as legal subject but as helpmate to the man of law. Their place is not the competitive public terrain of law but the private sphere of the home. Here their duties are to serve the domestic and emotional needs of their husbands, to assume responsibility for children, to provide love and stability, to leave the man of law nourished and free to pursue his own interests in the market place.[25]

It is clear how much more this applies to married women than to unmarried women. The law can more easily slot a married woman into this picture. While a single woman can rebut the image more readily, a married woman is fighting an uphill battle because her daily reality looked at from a certain perspective may very well at times resemble this picture.

It is also clear how much more this applies to commercial law, because it can be argued that Naffine’s image of the law finds ultimate expression in commercial law. Law’s preferred subject is that of commercial law. It can be argued, for example, that contract law is the foundation of commercial law, and that, in turn, the principles on which contract law is built are that individuals are free, competent, rational and competitive.

Therefore, as Spender argues, in commercial law perhaps more than in any other area of the law there is a tendency to keep women/wives out or to relegate them to other areas of law which are perceived as being more appropriate. In relation to corporations but of general application, Spender argues that:

Women will come into contact with corporations in many different ways, but they will not be classified as being within the realm of corporate law. For example, women will be employees of corporations, but this is the province of industrial law or employment law. They will also come into contact with the company as involuntary creditors if they suffer an injury caused by the company, but this will be in the province of tort law. They may be joining the company in a divorce property settlement but this will be in the realm of family law.[26]

Anne Bottomley has described the law as having a general discomfort with anything which can be described as ‘family’ situations. She argues that ‘there is often a sense that not only are these situations awkward in themselves but they … contaminate the law by bringing in extra problems which dissipate doctrinal purity and clarity.’ It is easier then to deal with these issues as ‘special cases and move them into a different picture, a different frame of reference’.[27]

Where commercial law cannot help but deal with wives, when it cannot relegate them to a different frame of reference, it separates them out into specific principles that apply only to them. In this way the purity and objectivity of existing legal principles is maintained.

This is as true for equity as it is for common law. Equity is unable or unwilling to recognise the structural inequalities in our society as a disadvantage and consequently admit them into the general principles of the doctrines which protect vulnerable people who find themselves in disadvantageous contracts. Otto takes up this argument.[28] In examining the application of unconscionability in the case of Commercial Bank of Australia Ltd v Amadio (1983)151 CLR 447, she argues that the law’s construction of special disadvantage favoured the male/husband rather than the female/wife position. She argues that the disadvantage suffered by Mrs Amadio went beyond that which she shared with Mr Amadio, that of being old and lacking English skills. Otto claims that ‘another aspect of her special disadvantage arose from her position as a wife. This secondary social position resulted in her exclusion from participation in the negotiation of the agreement, and seriously affected her ability to act in her own self-interest. This remained unacknowledged because of the privileging of Mr Amadio’s experience.’[29] Otto argues that the creation of the facts which constituted a special disadvantage was taken purely from the husband’s point of view and thus an important opportunity to acknowledge structural disadvantage was missed. What we are left with is a principle which ‘renders the female presence either invisible or not relevant. It is a familiar judicial manoeuvre that inevitably results in the silencing of women’s experience.’[30]

Unlike Fehlberg, Otto does not see the answer as lying in the development of wife specific principles such as Yerkey. She says that in attempting to overcome the law’s apparent privileging of men, feminists have been debating the relative merits of whether equality can be achieved by ‘legal change which promotes identical treatment of women and men, or alternatively … by legal redefinition of women’s differences as equivalent (alike in status) to qualities considered to be male’.[31] She claims that the difference model while creating some positive outcomes for wives, potentially has the unfortunate by-product of uncritically affirming gendered social differences. She says:

By uncritically embracing patriarchally defined differences between women and men, the construction of women as more naturally inclined to domestic work than men is confirmed. This operates to legitimate women’s subordination to men by relegating women to a secondary social and domestic role. Unless the difference approach can find a way of also revaluing what is currently seen as ‘women’s work’, it runs the risk of entrenching gendered inequalities with a feminist stamp of approval.[32]

In other words adopting a ‘wife specific’ principle may provide a short-term solution but by itself it does nothing to advance the position of wives to a point where such protection from the law is no longer needed. It can do nothing to provide a long-term and permanent solution. But this is not surprising. Otto argues that equity has never been interested in achieving equality beyond a formal equality between parties in a legally regulated transaction. It has never sought to acknowledge ‘structural social differences’ which may affect a transaction. In assessing equality, equity has concentrated on material factors, which has ‘resulted in less tangible claims and liabilities, such as diminished social power or opportunity, being positioned outside its terms of reference’.[33]

This view is shared by others like Auchmuty who has argued that while equity has at times come to the protection of women/wives it cannot be described as a protector of women’s rights;

Equity has come to the aid of women many a time, but it has never spoken for women, nor represented women’s viewpoint. It is but another of patriarchy’s discourses and despite its heroic reputation … it still lets women down.[34]

Mackenzie has stated it a little differently, saying equity has provided protection for the weak without empowering them.[35]

The desire to return home

It has been argued in the discussion above that the representation of a wife in commercial law remains close — too close, to the mid 19th century representation. Equity’s position has been justified by empirical evidence suggesting that when it comes to exercising power, wives remain unequal partners in a marriage. This is true both in the home and in the commercial/business functions they perform. This empirical evidence lends weight to the argument that equity’s special protection of wives is warranted, despite the fact that it does not sit very well with modern ideals of the marriage relationship. A by-product of this is that the law separates women and their experiences and relegates them to the ‘private’ and to the ‘other’, in a quest to maintain doctrinal purity. Women are fighting this and making some inroads but the road is harder for married women. A wife will always be seen as a separate legal subject while she remains the sacred icon of the home. The concept of the home and the ways in which it receives judicial interpretation is crucial to the legal subject of the wife.

Robin Mackenzie argues that while equity’s early focus on the wife was as a victim needing protection, the 20th century cases are less about the wife per se and more about the protection of the family home as the site of security in the legal and emotional sense. Quoting from Goodrich she claims:

… the home is a legal term invested with remarkable significance. The home is autobiographically both domesticity and family, the site of an originary law, that of paternity … or maternal domain. The home is connotative psychoanalytically of emotional security, of nurture and of the immemorial …[36]

It can be argued therefore that the concern for wives especially in the 20th century is grounded in this subconscious attachment to the concept of the home. The wife it can be argued has become a sacred icon of the family home. This is problematic for wives as it entrenches them in their traditional position.

The mapping of home/women/sacred in the institutional unconscious of the law results, then, in a deep ambivalence which offers women limited protection without the means of exercising full citizenship.[37]

How can wives escape this positioning in our law? Drawing from Gillian Rose’s and Marina Warner’s works, Mackenzie argues that we need to create a paradoxical home. This home would be ‘a place where you would like to belong, and might be allowed to stay’ a place ‘without the implied exclusions and violence’. For this home to be created we need to stop looking back and start looking forward. Warner says:

Home lies ahead, in the unfolding of the story, not in the past wanting to be regained. Home need not represent closure and an illusory innocence but an internal dwelling place nourished by stories we held in common and with which we make and remake the world we inhabit.[38]

Bottomley argues that the home is either portrayed as an idyllic romantic place or as a place of tension and violence. Neither of these images reflect the reality of a modern relationship where she argues there is a concurrent struggle for individualism and communality. She says:

The figure of the wronged woman compels us towards compassion. The idyllic image of the family offers hope. But both are romantic icons, pulling us back in time rather than moving us forward. We seek pictures for a future and, ironically, they are to be found in re-viewing the very images, the ideas, which once seemed so constraining. We seek to be seen as citizens rather than to be continually portrayed as wives.[39]


We have seen in the above discussion that married women remain locked in a time warp at least in relation to the way equity perceives them. By examining the modern approach that equity courts have to married women in the area of surety contracts we can decipher a desire to protect wives from the perceived vulnerability of their position. I have argued that this need to protect extends to a need to protect the physical and emotional concept of the home. I have also argued that the distillation of legal principles which apply only to married women can be explained by the law’s general tendency to keep women, and in particular married women as separate, as the ‘other’ in law. By doing this, law retains its purity and rationality. The outcome of these factors for wives is simple, they remain locked in a particular frame of reference and invisible in others.

I have argued that while the above is true of law in general it is more true in commercial law because the foundational principles of commercial law are the very same as those which are preferred by, and underpin the law in general.

[*] Renata Grossi teaches law at the University of Canberra.

[1] For a more detailed discussion of the legal position of married women see Holcombe, Lee, Wives and Property, University of Toronto Press, 1983; Shanley, M., Feminism Marriage and the Law in Victorian England 1850-1895, Princeton University Press, Princeton NJ, 1989; Yalom, M., A History of the Wife, Pandora, London, 2001.

[2] Holcombe, above, ref 1.

[3] Holcombe, above, ref 1, p.30.

[4] Pateman, Carole, The Sexual Contract, Polity, Cambridge, 1988, p.123.

[5] This position was somewhat eased by the Infant Custody Act of 1839.

[6] Unless the children were illegitimate then a wife not only had custody but a legal duty to maintain that child.

[7] Auchmuty, Rosemary, ‘The Fiction of Equity’, in Susan Scott-Hunt and Hilary Lim, Feminist Perspectives on Equity and Trusts, Cavendish, London, 2001.

[8] Conway, Maggie, ‘Equity’s Darling?’ in Scott-Hunt and Lim, Feminist Perspectives on Equity and Trusts, above, p.43.

[9] Barbara Leigh Smith Bodichon, leading campaigner in the married women’s property campaigns quoted in Auchmuty, above, p.14.

[10] Conway, above, ref 8, p.45.

[11] Ridge, Pauline, ‘High Hopes: The Meaning and Merits of Unconscionability as the Rationale for the High Court’s Decision in Garcia v National Australia Bank Ltd’, National Law Review <>.

[12] Ridge, above, ref 11, p.3.

[13] Mackenzie, Robin, ‘Beauty and the Beastly Bank: What Should Equity’s Fairy Wand Do?’ in Anne Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law, Cavendish, London, 1996, p.160.

[14] Mackenzie, above, ref 13, p.162.

[15] Australian Law Reform Commission, ‘Equality Before the law: Women’s Equality’, ALRC Report No 69, Pt II, 1994, 13.29.

[16] Fehlberg, Belinda, ‘Women in ‘Family’ Companies: English and Australian Experiences’, (1997) 15 Companies and Securities Law Journal 348.

[17] Fehlberg, ‘Women in Family Companies’, above, ref 16, p.364.

[18] Fehlberg, ‘Women in Family Companies’, above, ref 16, p.356.

[19] Fehlberg, Belinda, Sexually Transmitted Debt: Surety Experience and English Law Clarendon Press Oxford, 1997.

[20] Fehlberg, Sexually Transmitted Debt, above, ref 19, p.173.

[21] Fehlberg, Sexually Transmitted Debt, above, ref 19, p.182.

[22] Fehlberg, Sexually Transmitted Debt, above, ref 19, pp.37-42.

[23] Haig and Hepburn have argued in ‘The Bank Manager Always Rings Twice: Stereotyping in Equity After Garcia’ [2000] MonashULawRw 11; (2000) 26 Monash University Law Review 275 that despite the stereotyping, the Garcia principle is useful because it provides the much needed protection.

[24] Naffine, N., Law and the Sexes: Explorations in Feminist Jurisprudence, Allen and Unwin, Sydney 1990, p.22.

[25] Naffine, Law and the Sexes, above, ref 24, p.23.

[26] Spender, Peta, ‘Women and the Epistemology of Corporations Law’, (1996) 6 Legal Education Review 196-7.

[27] Bottomley, Anne, ‘Women and Trust(s): Portraying the Family in the Gallery of Law’ in Susan Bright and John Dewar, Land Law Themes and Perspectives, Oxford University Press, Oxford 1998, p.219.

[28] Otto, Dianne, ‘Women’s Inequality’, (1992) 18 Melbourne University Law Review.

[29] Otto, above, ref 28, p.816.

[30] Otto, above, ref 28, p.816.

[31] Otto, above, ref 28, p.811.

[32] Otto, above, ref 28, p.812.

[33] Otto, above, ref 28, p.809.

[34] Auchmuty, above, ref 7, p.18.

[35] Mackenzie, above, ref 13, p.167.

[36] Mackenzie, above, ref 13, p.166-7.

[37] Mackenzie, above, ref 13, p.168.

[38] Warner, quoted in Mackenzie, above, ref 13, p.171.

[39] Bottomley, above, ref 27, p.228.

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