A need for a gender-neutral approach

9th July 2024

A recent case highlights the need for a gender-neutral approach in the courts. On 28 March, the Court of Appeal heard OneSavings Bank plc v Waller-Edwards [2024] EWCA Civ 302 which, discussed the case of Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44 (Etridge). Etridge issued guidance for solicitors for when a wife proposes to issue a guarantee, or charge over her interest in the matrimonial home in favour of a bank, to secure the borrowings of her husband. This case was heard in 2001 but is still referred to in recent cases today.

Etridge principles

The judgment in Etridge established the principle that a Lender is put on enquiry that, in certain situations, a person giving a guarantee or surety might be subject to undue influence. It imposes additional obligations to ensure that such a person receives properly independent advice. While the judgment is capable of applying to any third party who is acting as surety for another party’s debts where the relationship between the parties is non-commercial, the context of this case involves the husband earning more than the wife and arguably being in a greater position of power. The principles and guidance use wife and husband examples, reflecting traditional gender roles.

The fact that Etridge principles are still referred to and applied today is problematic, as these traditional gender roles are too narrow for modern society. The principles reinforce assumptions that only women are vulnerable and can be unduly influenced. This encourages gender bias and fails to recognise undue influence within all forms of relationships. Men can be vulnerable and influenced by their female partner and must be given the same protections. Similarly, any partner of any gender can be influenced by their co-partner of any gender, for example within same-sex relationships. There must be equal protections for every type of relationship.

Gender-neutral approach required

There are very few cases which reach the courts that involve a man being under the undue influence of his female partner, or which refer to any undue influence within LGBTQ+ relationships – this may suggest that these principles aren’t being applied broadly in practice and could mean that not everyone is being afforded the protection they should expect. Similarly, there is very little discussion around the impact of gender role assumptions when applying these principles, which perhaps indicates a lack of recognition of inequality and the need for change.

A move towards a more gender-neutral approach in this area would be a welcome development to reflect the diversity of our now more inclusive society. Going forward the judiciary should look to develop an approach which will protect those who are vulnerable, whatever their gender, and create more inclusive principles which can be applied in practice to any relationship.

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