Equity's intervention in the enforceability of third party security transactions

The main purpose of this thesis is to examine the way in which equitable principles come into play so as to affect the enforceability of the security provided to a bank by a woman who has agreed to stand surety for her husband’s or partner’s debts. In particular, the focus is on situations involving mortgages over the family home. In such cases, the female surety wishing to set aside the transaction will have to establish either an interest in the property which ranks in priority to the bank’s interest or the existence of an equity to set aside the transaction which is binding on the bank.

In doing so, the thesis sets out to argue that the present formulation as well as judicial interpretation of the equitable principles governing the equitable ownership of the family home and the acquisition of an equity to set aside the transaction are gender biased and continue to discriminate against women. Despite the appearance of neutrality of these principles, the thesis sets out to establish the gender bias of the principles by their maintaining a clear dichotomy between the private and public spheres and ignoring the effect of sexual division of labour in domestic relationships and the continued economic disparity of men and women.

The gender bias of the law results in the equitable principles being ineffective in terms of offering the desired level of protection to vulnerable sureties as envisaged by the O’Brien test. The further aim of the thesis is to consider possible measures, particularly extra-judicial measures, which may be taken in improving the protection of women sureties against advantage-taking in the process of providing security.