Case Analysis - Section 199, the Equality Act 2010

Case Analysis - Section 199, the Equality Act 2010

Introduction: The Case

By a single, short section the Equality Act 2010 ('the Act') seeks to abolish the presumption of advancement. In accordance with this act, this study is going to analyse the case, which demands advise to a client using Section 199, the Equality Act 2010. This is the case of Franz, who is married to Felice, travels a lot for his work. Franz on one work trip to Devon, had a brief affair with Dora. Eighteen years and nine months later Dora contacted Franz to tell him that he has a son, called Joseph. She told Franz that she had no need of his support up to this time, but Joseph has now reached 18 and wants to go to college. The dates add up, so Franz concluded that Joseph was probably his son. Franz transferred £20,000 into Joseph's bank account to pay for the college fees. Franz also bought £3,000 worth of shares and instructed his stockbrokers to register them in Joseph's name. However, by the passage of time suspicion arose to Franz, that Dora is lying to him and Joseph is not his son. Franz now begin to dislike Joseph and Dora, and is also growing suspicious about whether Joseph is really his son. This study is going to Advise Franz whether he can assert rights in the money and shares on the assumption that (a) Joseph is his son, and (b) is not his son.

Section 199: Equality Act

The Act received Royal Assent on 8 April 2010 and section 199 will come into force on such day as the Lord Chancellor may by order appoint. It is helpful to set out the section in full:

199 Abolition of presumption of advancement

The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.

The abolition by subsection (1) of the presumption of advancement does not have effect in relation to -

(a) anything done before the commencement of this section, or

(b) anything done pursuant to any obligation incurred before the commencement of this section.

Section 199 was passed because the Government thought that the current operation of the presumption of advancement would breach Article 5 of Protocol 7 to the European Convention on Human Rights ('ECHR'). The United Kingdom is not currently a party to that protocol, but the former Labour Government was committed to joining it and accession remains a possibility under the Coalition Government. This paper argues that in fact the existing law would not breach Article 5 and so abolition would not be necessary. It further argues that, even on the assumption that abolition would be required, section 199 would not have the desired effect.

The presumption of advancement act talk about the provision of money by one person to another so that the other person can buy property or any asset for ...