Presumptions of Resulting Trust and Advancement in Spousal Relationships: Products of a Bygone Age of Relevance in Hong Kong
The presumptions of resulting trust and advancement have received much criticism for being outmoded, gender biased and arbitrary in circumstances. While many common law jurisdictions have abandoned the use of such presumptions, they continue to apply in Hong Kong. The central argument of this essay is that the presumptions continue to be relevant in Hong Kong despite their criticisms, and the presumptions have the potential of further refinement. This essay focuses on the operation of the presumptions in spousal relationships and examines the criticisms on these presumptions, taking into account the practices of other common law jurisdictions, such as, the UK and Singapore. This essay argues that the presumptions have modern relevance in Hong Kong. Not only are the presumptions useful evidential tools in determining ownership, their application are in line with social norms in Hong Kong where there continues to be a significant number of homemakers and where property arrangement between spouses often involve commercial elements. It is also possible to modernize the presumptions given Hong Kong courts’ willingness to adapt the presumptions to socio-economic realities in past cases. This essay concludes by suggesting the possibility of replacing the traditional categories of relationships with a list of factors or factual circumstances under which the presumption of advancement arises. This approach prevents unjust outcomes due to rigid application of narrow categories of relationships, it allows Hong Kong courts to apply presumptions based on the specific facts of each case while being able to develop the law on presumptions within predictable bounds.