At this time of year, the thoughts of a historically-minded tutor of Land Law turn to the nature of equity. Yes, it is time to inflict upon a new cohort of second year students the distinction between legal and equitable rules, to skate over the development and demise of conciliar jurisdictions and get them to read some of Land Law’s biggest cases.
This year, I have had reason to go back to the House of Lords decision in National Provisional Bank v Ainsworth [1965] AC 1175, and read it for the first time in quite a while. It weighs in at about 47 pages, so a bit of a thumper, I am afraid. Still, undoubtedly an important case, both in its attempt to define what is, and what is not, a property right as opposed to a personal right, and also in its many nuggets about social conditions and gender relations in the period which might be seen as the long twilight of ‘coverture’ as far as matrimonial property was concerned. The big point of the case is taken to be the refusal to class as a property right the ‘deserted wife’s equity’, with the result that a woman whose husband had left her and her children (going off and finding another woman, committing adultery, not paying maintenance and trying hard to get his wife out of her home, as Lord Denning in the Court of Appeal informs us – clearly what a nice fellow and a man of integrity) did not have a property right to enforce against a bank which had granted her husband a mortgage, and wanted to turf her out and sell up.
It is not an uncommon reaction to such cases amongst today’s law students to see the woman in the case as rather pathetic, and to think that this is very much a thing of the past, and of past incarnations of marriage and family life. It is true that we are not likely to see again the overt suggestion that a married woman does not count sufficiently to be ‘in actual occupation’ of land (raised here, and rumbling on until the 1980s), and that subsequent developments in the area of matrimonial property, banking law and constructive trusts might well have helped out Marjorie Ainsworth, a.k.a. ‘the wife’ in this case, so, the problems here would be unlikely to recur in exactly this form. Nevertheless, we are unlikely to see the end of spousal misbehaviour, desertion and mean and petty conduct following separation, while marriage and gender inequality persist, and some of the judges’ positions and descriptions relating to gender and, specifically, to married women, seen here, have not entirely left the building. In particular, I want to focus on something I had forgotten about from this case – its use and expansion of that rather questionable metaphor of equity as ‘not past the age of child-bearing’:
‘Equity may not be past the age of child-bearing but an infant of the kind suggested would lack form or shape.’ (Lord Hodson, 1224E).
There is an interesting consideration of the obvious (and rather grim – women as brood mares … judges presumably ‘fathering’ doctrine …) gender aspects of this in an article on legal metaphor from 2004: A. Culley and M. Salter, ‘Why study metaphors?’, (2004) 15 KCLJ, 347 – well worth a read. The authors note the echoes of ancient fears of the ‘monstrous birth’, familiar to medieval and early modern historians, which we can hear in this iteration of the metaphor.
Two further aspects strike me as interesting, looking at Ainsworth from a 2024 perspective. The first is that there is something particularly jarring in using a metaphor which positions equity as a woman, and stresses the centrality of child-bearing to a woman’s identity, in a case in which am actual woman, and one who had dutifully produced four children before her husband chose to walk out, was being screwed over by the combined might of social and gender relations, a selection of existing, man-made, legal doctrines, and a manel of judges. Metaphorically fertile women, good, real women, whether or not still able to reproduce in the traditional way, who cares? The second is that ‘past the age of child-bearing’ sounds particularly out of place in a world of IVF, surrogacy, choices about fertility, focus on living a good life through and beyond the menopause, and the occasional woman in the higher echelons of the judiciary. . I will be interested to see if it continues to be used in a world which finally has a small number of women in tribunals of the highest level, women who, things being what they are in the world of the legal profession, are quite likely to fall into the dread category of being ‘past the age of child-bearing’ themselves.
I must say that I am not generally in favour of the use of metaphor in legal discourse, if it can be avoided – even if it doesn’t strike an inappropriate, and icky note, as here, it is often rather pretentious. Judges would be well advised to steer clear of attempts at literary greatness. Clarity is what is wanted. If we must have a metaphor here, however, what would be better? Something to do with flowers, perhaps? Ah, the ladies would like that, wouldn’t they?!
GS
18/9/2024
Image – a rose! Photo by Walyudin on Unsplash