distributive justice and gender in intimate relationships: a relational approach
TRANSCRIPT
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: [email protected] blog: http://kategalloway.net