The Intersection of the Rule in Yerkey v Jones and Contemporary Anti-Discrimination Law in Australia – Can the ‘Special Wives’ Equity Survive?

The High Court in Yerkey v Jones considered the enforceability of a guarantee provided by married woman to secure her husband’s debts. Dixon J said that although relationship husband and wife did not give rise presumption undue influence, law had never been divested completely ‘the equitable an invalidating tendency’. J’s formulation was essentially adopted majority justices Garcia National Australia Bank their judgment thus represents definitive endorsement view. Kirby on other hand rejected stereotype underlying Yerkey’, which he described as evidence ‘unprincipled discriminatory category’. This article advances argument majority’s view wives stereotypical accordingly would be inconsistent with principles contemporary sex discrimination laws prohibit based assumption views. inconsistency will explored first discussing propositions underpinned Garcia, comparing them treatment those law.