Distributive Justice and Gender Within Intimate

RelationshipsA Relational Approach

Kate Galloway | JCU | AustraliaContested Property Claims Conference

Aarhus University, Denmark10-11 December 2015

In intimate relationships, property is…

Performed Contested

Common law distribution; legal owner enforcement

[women] claiming beneficial interest in

family home

http://conferences.au.dk/propertyclaims2015/

The performance of property

At common law, property

Represents tenets of the liberal market

Upholds atomistic individualism

Reflects gendered structures of economic exclusion

Spousal property historically: pre- and post-

Married Women’s Property Acts

Separate estatesCoverture

Property merged in husband’s

estate

Individualism

Performing spousal property: allocative mechanisms

property

Status

Family lawTrusts

redistribution

distribution

redistribution

Performing property: Elements of intimate partner trusts

Intention Contribution

Intention as to property distribution

Transaction (public sphere) Relationship (private sphere)

Contesting: women’s financial capacity

hampered

Pay gap

Unpaid caring

‘doing gender’

Violence, oppression

Pettitt v Pettitt (UK)Hoffman v Hoffman

(NZ)Hohol v Hohol (Aust)

Eves v Eves (UK)Peter v Beblow (Can)

Pettkus v Becker (Can)Murdoch v Murdoch

(Can)Stack v Dowden (UK)

Walker v Hall (UK)Cossey v Bach (NZ)…

Contesting property: Intention ignores gendered power

Contesting property: the framework

Nedelsky’s broad view of law, relationships

Macneil’s relational contract

Possibilities for property

(trusts)

Indicia of transactional exchange (Macneil, 1974)

Express promise Formal communication

Sharp commencement

Certainty of terms

Performing propertyCase Study: Stack v Dowden (England)

Formalities

• She kept extensive records• Unusually for relationship,

separate finances [mark of individualism]

Transaction

• Sufficient evidence of separate estates to establish an intention as to her beneficial interest

Contesting propertyContrast indicia of relational exchange

(Macneil, 1974)

Informal communication

Gradual commencement

Tacit assumptions

Internally motivated

Contesting propertyCase Study: Burns v Burns (England)

Significant age gap

Unmarried

1960s

She was pregnant with

2nd child

She was vocationally

unskilled

Decision to buy house

Intention embedded in relationship

Tacit assumptions

Trust

Vulnerability

Contesting propertyCase Study: Baumgartner v Baumgartner (Aust)

Abusive control over $

Intimation of violence

1970s-80s

His refusal to marry

Child

Decision to purchase

house

Fear

Vulnerability

Intention embedded in relationship

Tacit assumptions

Resolving the contest: principles

What kinds of laws help structure constructive

relationships? (Nedelsky, 2012)

Commitment & interdependence (Wong,

2012)

Familial trust (Gardner & Davidson, 2011)

Dependency is core dimension of the relational

self (Nedelsky, 2012)

transactionintentio

n

property relationship

Relationship

Intention

Property

From transactional

…to relational intention

e: kathrine.galloway@jcu.edu.au blog: http://kategalloway.net