The presumption of advancement is a legal presumption which arises in various

common law jurisdictions In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

in relation to the transfers of money or other property. Broadly, the presumption states that where a husband transfers property to his wife, or a father to his child or someone to whom he has assumed parental responsibility, then in the absence of other evidence the court will presume that the transfer was by way of gift. In Australia it has also been held to apply to transfers from a male

fiancé An engagement or betrothal is the period of time between the declaration of acceptance of a marriage proposal and the marriage itself (which is typically but not always commenced with a wedding). During this period, a couple is said to be ''fi ...

to a female fiancée. In Hong Kong it has been suggested that it may also apply to an official

concubine Concubinage is an interpersonal and sexual relationship between a man and a woman in which the couple does not want, or cannot enter into a full marriage. Concubinage and marriage are often regarded as similar but mutually exclusive. Concubi ...

. In all other circumstances the transfer is presumed to be by way of

loan In finance, a loan is the lending of money by one or more individuals, organizations, or other entities to other individuals, organizations, etc. The recipient (i.e., the borrower) incurs a debt and is usually liable to pay interest on that ...

(in the case of money) or subject to a presumed resulting trust in the case of other property. Sometimes, less commonly, the presumption is referred to in the reverse, in that all other transfers are said to be subject to a presumption of loan. The presumption has been subjected to criticism on the basis that it reflects outdated

Victorian era In the history of the United Kingdom and the British Empire, the Victorian era was the period of Queen Victoria's reign, from 20 June 1837 until her death on 22 January 1901. The era followed the Georgian period and preceded the Edwardia ...

social values In ethics and social sciences, value denotes the degree of importance of something or action, with the aim of determining which actions are best to do or what way is best to live (normative ethics in ethics), or to describe the significance of dif ...

, i.e. a transfer from a father or a husband is to be presumed to be a gift, but not a transfer from a wife or a mother (although in Australia it has been recognised in Brown v Brown that a wife can transfer property to her husband). Others have questioned whether the presumption has any significant effect in practice. Some academics have even questioned whether it is accurate to say that there is presumption of advancement at all. There is no presumption of advancement between cohabiting couples (whether heterosexual or homosexual), nor between a man and his mistress. The presumption is rebuttable by evidence. In '' Pettitt v Pettitt''

970 Year 970 ( CMLXX) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar, the 970th year of the Common Era (CE) and ''Anno Domini'' designations, the 970th year of the 1st millennium, the 70th yea ...

AC 777 Lord Hodson indicated that the weight to be accorded to the presumption is very slight, and that it might be rebutted by the slightest of evidence. It has also been referred to as a "judicial instrument of the last resort". But in the absence of any other evidence the presumption will still apply. The earliest known case where the presumption has been cited dates from 1677. In the Hong Kong case of ''Suen Shu Tai v Tam Fung Tai''

014 014 may refer to: * Argus As 014 * BIND-014 * 014 Construction Unit * Divi Divi Air Flight 014 * Pirna 014 * Tyrrell 014 The Tyrrell 014 was a Formula One car, designed for Tyrrell Racing by Maurice Philippe for use in the season. The cars wer ...

HKEC 1125 the Court of Appeal of Hong Kong, in ''obiter dicta'', preferred the modern approach in that the presumption of advancement applies equally where a mother transfers property to her child. However, it left open the question of whether the presumption applies where a mother transfers property to an adult independent child.

Abolition

In New Zealand the presumption has been abolished between husbands and wives. In Canada the Supreme Court has held that it does not apply to gifts from a father to an adult child. In the United Kingdom provision was made to abolish the presumption in section 199 of

Equality Act 2010 The Equality Act 2010 is an Act of Parliament of the United Kingdom passed during the Brown ministry with the primary purpose of consolidating, updating and supplementing the numerous prior Acts and Regulations, that formed the basis of anti-d ...

, but to date, that section has not been brought into force. A previous attempt to abolish the presumption as between husband and wife by way of a private member's bill entitled the Family Law (Property and Maintenance) Bill failed to reach a second reading in 2006.

Footnotes

{{Reflist Evidence law English law