Farmers' Cooperative Executors and Trustees Ltd v Perks (1989) 52 SASR 399, South Australian Supreme Court: Duggan J
Keywords: undue influence; duress; domestic violence
Summary
In Perks, the legal issue concerned whether a memorandum of transfer of a property interest from a wife to a husband was void as having been executed under duress or as a result of his undue influence. The defendant husband had been convicted of murdering his wife and the action was brought by her executor. In evidence, detailed accounts of the history of his violence towards her were given, including evidence from their children and a family friend. The sons gave evidence of their father’s extreme brutality towards their mother. The family friend attested that the husband had “declared on more than one occasion that a woman should not own more land than her husband, that it wasn't fair, wasn't right”. He had said this in the context of demanding that she “square up” and “sign on the dotted line”.
Feminist judgment
The trial judge found:
“that the defendant subjected the deceased to violence and abuse which was so much a part of everyday life in the household that the children did not regard it as unusual until they discussed it in later years with friends at school. The only conclusion I feel able to draw from the deceased's decision to remain with the defendant over the years is that she too came to accept it as part of her everyday life. In my view, the defendant dominated his wife by the constant employment of actual and threatened violence and it is against this background that the events more directly concerned with the transfer of her share in the property fall to be considered.”
The judgment reveals that Mrs Perks was oppressed by her husband physically, psychologically and economically. Duggan J held that the memorandum of transfer was void as it had been executed in the context of undue influence.
- Australian Law Reform Commission, Equality before the Law (Report No 67, Parts 1-2, 1994), 8.11-8.12)