When Equality Is not Equity:Homosexual Inclusion in Undue Influence Law

Abstract

In Barclay's Bank v. O'Brien(1993) the House of Lords extended the undue influence rules to heterosexual and homosexual cohabitees, a move that was widely welcomed and has been endorsed in Royal Bank of Scotland v. Etridge (No. 2) (2001). The paper argues that the extension to homosexual couples is inappropriate, since undue influence is largely a problem of heterosexuality. It is not accidental that there have been no reported cases of undue influence between lesbian or gay partners, not because abuses of power do not occur within such relationships, but because they are free of the central causal factor of undue influence: not intimacy per se but the gendered power dynamic within heterosexual intimacy that has characterised almost all reported cases. The first part of the paper examines the courts' treatment of gay and lesbian couples in other areas of equity and concludes that the absence of gender role assumptions leads courts to treat lesbian and gay claimants more equitably than they do heterosexual women. The second part focuses on the potential for gay and, especially, lesbian relationships to act as models of more egalitarian relationships than heterosexual ones. The dominant discourse of inclusion within the gay and lesbian legal lobby is problematised, and the paper concludes that what is needed is social and judicial recognition of what is different, not what is the same, about our relationships.