Public Policy in Family Contracts, Part II: Antenuptial Contracts

2021 ◽  
Vol 32 (1) ◽  
pp. 3-23
Author(s):  
Elsje Bonthuys
Keyword(s):  
Public Policy ◽  
Gender Equality ◽  
Bargaining Power ◽  
Common Law ◽  
Third Parties ◽  
Constitutional Court ◽  
Judicial Discretion ◽  
The Public ◽  
Property System ◽  
The Common

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.

Rule and Reason in the Common Law of Foreign Judgments

1999 ◽  
Vol 12 (2) ◽  
pp. 193-221
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Public Policy ◽  
Procedural Justice ◽  
Common Law ◽  
Minimal Level ◽  
Choice Of Law ◽  
The Public ◽  
Natural Justice ◽  
Foreign Law ◽  
The Common ◽  
Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Sinclair v. Brougham

1938 ◽  
Vol 6 (3) ◽  
pp. 305-326
Author(s):  
Lord Wright
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The Public ◽  
Unjust Enrichment ◽  
The Common ◽  
The Law ◽  
A Company ◽  
Rate Importance

The case of Sinclair v. Brougham has been generally regarded as an authority of first-rate importance. I think it has been properly so regarded, though my reasons for so thinking may not altogether agree with the reasons emphasized by some lawyers. I regard the case as primarily significant as embodying the leading principles on which the Court acts in exercising its equitable jurisdiction to give relief in order to prevent unjust enrichment, or to achieve restitution, if we accept the useful term which has been employed in the recently published American Restatement of the Law of Restitution. The word itself is only an echo of language which will be found in English judgments, indeed, in this very case of Sinclair v. Brougham. The case shows how the Court can do justice by applying equitable principles where the Common Law would have been powerless. But since every Court is now bound in the same proceeding to apply either law or equity or both as the circumstances may require, the distinction between law and equity is now only important in the sense that the differences of method and rules must be observed. In the case we are considering a company had borrowed money for purposes for which it was ultra vires for it to borrow. There could in law be no claim for money lent and no claim in law for the repayment on the ground of quasi-contract or, to use the now obsolete phrase, contract ‘implied in law’, because to allow such a claim as a merely money claim would be to sanction an evasion of the public policy forbidding ultra vires borrowing by companies. Further, as the money lent or its products could not be identified in the company's possessions, a claim in law could not be maintained. But the powers of the Court were not exhausted. The problem was further complicated by the conflicting claims of the shareholders.

scholarly journals The Evolution of Public Policy and Judicial Function in English Law

2019 ◽  
Vol 10 (3) ◽  
pp. 472-495
Author(s):  
Stavros Brekoulakis
Keyword(s):  
Public Policy ◽  
Critical Appraisal ◽  
Common Law ◽  
Judicial Discretion ◽  
Legal Rules ◽  
The Public ◽  
Subjective Evaluations ◽  
English Law ◽  
Policy Inquiry ◽  
First Time

Abstract This article is concerned with the function of English judges in employing the doctrine of public policy to decide cases under common law. For the first time, the article offers a critical appraisal of the recent evolution of public policy and decision making under English law from a structured doctrine of legal rules and limited judicial discretion to an open-ended principle of subjective evaluations. The main thesis of the article is that the latest judicial amendment of the nature of the public policy inquiry constitutes a radical and unnecessary departure from generally accepted propositions on the appropriate function of English judges in addressing issues of public policy.

Public policy and private illegality in the pursuit of evidence

2016 ◽  
Vol 21 (1-2) ◽  
pp. 87-118
Author(s):  
David R. A. Caruso
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The United States ◽  
The Internet ◽  
Court Case ◽  
The Public ◽  
Scope Of Application ◽  
The Common ◽  
Evidence Law ◽  
Language Context

The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.

PRIVACY AND THIRD PARTIES TO CRIMINAL PROCEEDINGS

2017 ◽  
Vol 76 (3) ◽  
pp. 469-472
Author(s):  
Dame Mary Arden
Keyword(s):  
Family Life ◽  
Common Law ◽  
Third Parties ◽  
Criminal Trial ◽  
Third Party ◽  
Great Weight ◽  
Criminal Proceedings ◽  
The Public ◽  
Sex Offences ◽  
The Common

In Khuja (formerly PNM) v Times Newspapers Ltd. [2017] UKSC 49; [2017] 3 W.L.R. 351, the appellant (A) failed to obtain an injunction restraining two newspapers from publishing information given about him in a criminal trial in which he had been a third party. The defendants were charged with serious sex offences involving children. A feared that the public would associate him with those offences if the information was published. He claimed that publication would interfere with his and his family's private and family life. As against this, the open justice principle means that, wherever possible, proceedings should be heard in public and that there should be fair reporting of the proceedings. This principle carries great weight in the common law.

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

Duty Not To Accept Benefits From Third Parties

2017 ◽  
Author(s):  
Tamlyn Lloyd ◽  
Haywood Marcus
Keyword(s):  
Conflicts Of Interest ◽  
Common Law ◽  
Third Parties ◽  
The Other ◽  
The Common ◽  
Breach Of Duty

One of the consequences of the common law principle that a director must avoid conflicts of interest was that a director could not have an interest in a transaction with the company unless he had disclosed all material facts about the interest to the members and they had approved or authorized his having the interest. Authorization by the board was not sufficient. If the other party to the transaction had notice of the irregularity, the company might rescind the contract. The director might also be liable for breach of duty and under a duty to account for profits obtained by reason of such dealings.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

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