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34 Bond L. Rev. 1 (2022)

handle is hein.journals/bondlr34 and id is 1 raw text is: The Intersection of the Rule in Yerkey v Jones and Contemporary Anti- Discrimination Law in Australia - Can the 'Special Wives' Equity Survive? KENNETH YIN* AND MOSTAFA MAHMUD NASER* Abstract The High Courtin Yerkey v Jones considered the enforceability of a guarantee provided by a married woman to secure her husband's debts. Dixon J said that although the relationship of husband and wife did not give rise to a presumption of undue influence, the law had never been divested completely of 'the equitable presumption of an invalidating tendency' Dixon J's formulation was essentially adopted by the majority justices in Garcia v National Australia Bank and their judgment thus represents the definitive endorsement of Dixon J's view Kirby Jon the other hand rejected 'the stereotype underlying Yerkey, which he described as evidence of an 'unprincipled discriminatory category' This article advances the argument that the majority's view of wives was stereotypical and accordingly would be inconsistent with the principles of contemporary sex discrimination laws which prohibit discrimination based on the assumption of stereotypical views. This inconsistency will be explored by first discussing the propositions that underpinned the Yerkey and Garcia, and by comparing them with the treatment of those propositions in contemporaiy discrimination law Lecturer in Law, School of Business and Law, Edith Cowan University. Formerly a solicitor until 1996 then a Barrister at Francis Burt Chambers. This article is dedicated to his very dear friend and colleague Elisabeth Lambert for introducing him to the rich tapestry of human rights law and inspiring him to pursue his interest in it. Lecturer in Law, School of Business and Law, Edith Cowan University. We thank the anonymous reviewers for their careful reading of our manuscript and their many insightful comments and suggestions.

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