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Traditionally, society has regarded women as the inferior of the two sexes.  It was believed that women should be ‘kept’ by their husbands, who being the chief bread maker should look after his wife and their finances.  Up until recently women were not afforded special rights in equity that are available to them today.

The case of Barclays Bank and O’Brien 1994 has been significant in establishing rights for wives who have been unduly influenced by their husbands into risking their property for the debts of their husbands.  Lord Browne-Wilkinson’s judgement has been subject to much criticism regarding the extent to which wives and near-wives should be protected by the law from their husbands influence.  Two schools of thought have emerged from the case; one follows that, no special protection should be afforded to marry women, the second, called the ‘special equity theory’, considers that special rights should be available to those where the relationship between the debtor (husband), and surety (wife), is such that the surety relies upon the debtor.  The debtor’s influence over the surety is a natural feature of the relationship.  Lord Browne-Wilkinson recognised that even in the modern day women still depends upon their husbands to deal with financial matters.  The leading authority on special rights, which should be given to women prior to O’Brien, was Turnbull and Duval 1902.  His lordship criticised the judgement in this case and described the basis on which the case was decided as ‘obscure’.  Scott LJ supported this as he described the judgement as ‘somewhat elusive’.  The case of Duval dates back to 1902 when people took the traditional view that women should depend entirely upon their husbands.  Attitudes have changed considerably since then.  In recent years their have been a large number of cases similar to O’Brien which reflect the changes in societies attitudes towards protecting wives and more recently, ‘lovers’ or ‘near wives’.  Lord Browne-Wilkinson states that, ‘society’s recognition of the equality of the sexes has led to a rejection of the concept that the wife is subservient to the husband’.  This implies that he has recognised that women are becoming independent of their husbands, however, there are difficulties when discussing women’s rights, as he then goes on to state that, ‘practice does not yet coincide with the ideal’.  In many marriages today it is still the husband who deals with the financial aspects and the wife normally without questioning, willingly follows his advice.  This is significant, as it shows that a wife should have no need to question her husbands decisions, as a marriage should be based upon trust and confidence.  In cases where husbands have abused the trust and confidence invested upon them, his lordship suggested that, wives can ‘reasonably look to the law for some protection’.  

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Lord Browne-Wilkinson’s judgment conveyed the need for reform of the current law, in order to reflect the evolving of societies attitudes towards women.  His judgement in effect proposed that women should not be treated as ‘victims’, as in the modern day women are as independent as men.  He recognised however, that as not all women bring their independence into financial arrangements, they should be given protection from their fraudulent husbands.  

In his conclusion, Lord Browne-Wilkinson, suggested that the special equity theory should be rejected as he felt there was no need to afford special protection to a ...

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