| n | 1 A. Phillips, ‘Citizenship and Feminist Politics’ in Citizenship, ed. G. Andrews (1991) 77. | n | 1 A. Phillips, ‘Citizenship and Feminist Politics’ in Citizenship, ed. G. Andrews (1991) 77.. |
| 2 T. Brennan and C. Pateman, ‘“Mere Auxiliaries to the Commonwealth”: Women and the Origins of Liberalism’ (1979) 27 Political Studies 183. | | 2 T. Brennan and C. Pateman, ‘“Mere Auxiliaries to the Commonwealth”: Women and the Origins of Liberalism’ (1979) 27 Political Studies 183.. |
| 3 M. Sawer and M. Simms, A Woman’s Place: Women and Politics in Australia (2nd ed., 1993). | | 3 M. Sawer and M. Simms, A Woman’s Place: Women and Politics in Australia (2nd ed., 1993). |
| n | 4 I have explored the gendered nature of citizenship at greater length in two complementary papers: ‘Embodying the Citizen’ in Public and Private: Feminist Legal Debates, ed. M. Thornton (1995) and ‘Historicising Citizenship: Remembering Broken Promises’ (1996) 20 Melbourne University Law Rev. 1072. | n | 4 I have explored the gendered nature of citizenship at greater length in two complementary papers: ‘Embodying the Citizen’ in Public and Private: Feminist Legal Debates, ed. M. Thornton (1995) and ‘Historicising Citizenship: Remembering Broken Promises’ (1996) 20 Melbourne University Law Rev. 1072.. |
| 5 S. Walby, ‘Is Citizenship Gendered?’ (1994) 28 Sociology 379 | | 5 S. Walby, ‘Is Citizenship Gendered?’ (1994) 28 Sociology 379 |
| n | 6 I. Kant, ‘Metaphysical First Principles of the Doctrine of Right [1785]’ in The Metaphysics of Morals (trans. M. Gregor, 1991) 125–6, s. 146. | n | 6 I. Kant, ‘Metaphysical First Principles of the Doctrine of Right’ in The Metaphysics of Morals (trans. M. Gregor, 1991) 125–6, s. 146.. |
| 7 U. Vogel, ‘Marriage and the Boundaries of Citizenship’ in The Condition of Citizenship, ed. B. van Steenbergen (1994) 75. | | 7 U. Vogel, ‘Marriage and the Boundaries of Citizenship’ in The Condition of Citizenship, ed. B. van Steenbergen (1994) 75.. |
| 8 N. Fraser and L. Gordon, ‘Civil Citizenship against Social Citizenship?’ in id., p. 97. | | 8 N. Fraser and L. Gordon, ‘Civil Citizenship against Social Citizenship?’ in id., p. 97.. |
| 9 Vogel, id., p. 79. W. Blackstone, Commentaries (Facsimile of 1st. ed. of 1765–69, 1979) 442. | | 9 Vogel, id., p. 79. W. Blackstone, Commentaries (Facsimile of 1st. ed. of 1765–69, 1979) 442.. |
| 11 Vogel, op. cit., n. 7, pp. 80–1. | | 11 Vogel, op. cit., n. 7, pp. 80–1.. |
| 12 F. Haug (ed.), Female Sexualization: A Collective Work of Memory (1987) 196. | | 12 F. Haug (ed.), Female Sexualization: A Collective Work of Memory (1987) 196.. |
| 13 A. Bottomley, ‘Self and Subjectivities: Languages of Claim in Property Law’ (1993) 20 J. of Law and Society 56, 61. | | 13 A. Bottomley, ‘Self and Subjectivities: Languages of Claim in Property Law’ (1993) 20 J. of Law and Society 56, 61.. |
| 14 D. West, ‘Power and Formation: New Foundations for a Radical Concept of Power’ (1987) 30 Inquiry 137, 145. Compare M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, ed. C. Gordon (1980) 98. | | 14 D. West, ‘Power and Formation: New Foundations for a Radical Concept of Power’ (1987) 30 Inquiry 137, 145. Compare M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, ed. C. Gordon (1980) 98.. |
| 15 For a detailed analysis of legal method and the political role it plays, see M.J. Mossman, ‘Feminism, and Legal Method: The Difference it Makes’ (1986) 3 Aust. J. of Law and Society 30. | | 15 For a detailed analysis of legal method and the political role it plays, see M.J. Mossman, ‘Feminism, and Legal Method: The Difference it Makes’ (1986) 3 Aust. J. of Law and Society 30.. |
| 16 H.S. Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (10th ed., 1912) 174. | | 16 H.S. Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (10th ed., 1912) 174.. |
| 17 This was particularly the case in the United States of America. See M.J. Horwitz, The Transformation of American Law, 1780–1860 (1977) 160. | | 17 This was particularly the case in the United States of America. See M.J. Horwitz, The Transformation of American Law, 1780–1860 (1977) 160.. |
| 18 M. Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985) ix. | | 18 M. Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985) ix.. |
| 19 Staves postulates that the position was somewhat more complicated in that marriage, as a status, crumbled in response to contract ideology in the seventeenth century but, by the end of the eighteenth century, deeper patriarchal structures were re-imposed. See S. Staves, Married Women’s Separate Property in England, 1660–1833 (1990) 4, 220. | | 19 Staves postulates that the position was somewhat more complicated in that marriage, as a status, crumbled in response to contract ideology in the seventeenth century but, by the end of the eighteenth century, deeper patriarchal structures were re-imposed. See S. Staves, Married Women’s Separate Property in England, 1660–1833 (1990) 4, 220.. |
| 20 Siegel presents a valuable study of the changing norms of marriage in the context of wife beating. See R.B. Siegel, ‘“The Rule of Love”: Wife Beating as Prerogative and Privacy’ (1996) 105 Yale Law J. 2117. | | 20 Siegel presents a valuable study of the changing norms of marriage in the context of wife beating. See R.B. Siegel, ‘“The Rule of Love”: Wife Beating as Prerogative and Privacy’ (1996) 105 Yale Law J. 2117.. |
| 21 C. Pateman, The Sexual Contract (1988). For further analysis of the marriage contract, see K. O’Donovan, Family Matters (1993), especially 43–59. | | 21 C. Pateman, The Sexual Contract (1988). For further analysis of the marriage contract, see K. O’Donovan, Family Matters (1993), especially 43–59.. |
| 23 Crimes (Sexual Assault) Amendment Act 1981 (N.S.W.); Criminal Law Consolidation Act Amendment Act 1976 (S.A.); Criminal Code (Sexual Offences) Act 1987 (Tas.); Crimes (Sexual Offences) 1991 (Vic.); Acts Amendment (Sexual Assault) Act 1985 (W.A.). The High Court upheld the validity of the South Australian law in 1991 (see R. v. L. (1991) 103 A.L.R. 577), the same year that the House of Lords abolished the immunity ( see R. v. R. [1991] 2 All E.R. 257). | | 23 Crimes (Sexual Assault) Amendment Act 1981 (N.S.W .); Criminal Law Consolidation Act Amendment Act 1976 (S.A .); Criminal Code (Sexual Offences) Act 1987 (Tas .); Crimes (Sexual Offences) 1991 (Vic .); Acts Amendment (Sexual Assault) Act 1985 (W.A .). The High Court upheld the validity of the South Australian law in 1991 (see R. v. L. (1991) 103 A.L.R. 577), the same year that the House of Lords abolished the immunity (see R. v. R. [1991] 2 All E.R. 257).. |
| 24 M. Freeman, ‘Contracting in the Haven: Balfour v. Balfour Revisited’ in Exploring the Boundaries of Contract, ed. R. Halson (1996) 74; R. Collier, Masculinity, Law and the Family (1995) 127 and throughout. See Collier further for a comprehensive study of sexuality in marriage. | | 24 M. Freeman, ‘Contracting in the Haven: Balfour v. Balfour Revisited’ in Exploring the Boundaries of Contract, ed. R. Halson (1996) 74; R. Collier, Masculinity, Law and the Family (1995) 127 and throughout. See Collier further for a comprehensive study of sexuality in marriage. |
| n | 25 P.S. Atiyah, An Introduction to the Law of Contract (5th ed., 1995) 3. | n | 25 P.S. Atiyah, An Introduction to the Law of Contract (5th ed., 1995) 3.. |
| 26 The Australian Law Reform Commission has addressed the issue and recommended recognition of prenuptial agreements. See A.L.R.C., Matrimonial Property, report no. 37 (1987); A.L.R.C., Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992). For critique, see M. Neave, ‘Private Ordering in Family Law – Will Women Benefit?’ in Thornton, op. cit., n. 4. For a feminist critique of contract in the American context, see C. Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law J. 997. | | 26 The Australian Law Reform Commission has addressed the issue and recommended recognition of prenuptial agreements. See A.L.R.C ., Matrimonial Property, report no. 37 (1987); A.L.R.C ., Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992). For critique, see M. Neave, ‘Private Ordering in Family Law – Will Women Benefit?’ in Thornton, op. cit., n. 4. For a feminist critique of contract in the American context, see C. Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law J. 997.. |
| 27 L. J. Weitzman, The Marriage Contract: Spouses, Lovers, and the Law (1981) 347 ff. | | 27 L. J. Weitzman, The Marriage Contract: Spouses, Lovers, and the Law (1981) 347 ff.. |
| 28 Grossberg, op. cit., n. 18, p. 52. | | 28 Grossberg, op. cit., n. 18, p. 52.. |
| 29 Balfour v. Balfour [1919] 2 K.B. 571. | | 29 Balfour Balfour v. [1919] 2 K.B. 571.. |
| 30 Freeman, op. cit., n. 24. While acknowledging the trends towards contractualism and private ordering, Regan cautions against it, noting that greater freedom to contract invites greater scrutiny by the courts. More significantly, however, he would rather reclaim the idea of status by injecting it with new notions of responsibility and relationality, as well as divesting it of its sexist assumptions. See M.C. Regan Jr., Family Law and the Pursuit of Intimacy (1993). | | 30 Freeman, op. cit., n. 24. While acknowledging the trends towards contractualism and private ordering, Regan cautions against it, noting that greater freedom to contract invites greater scrutiny by the courts. More significantly, however, he would rather reclaim the idea of status by injecting it with new notions of responsibility and relationality, as well as divesting it of its sexist assumptions. See M.C. Regan ., Family Law and the Pursuit of Intimacy (1993). |
| 31 For example, Law Reform (Miscellaneous Provisions) Act 1970 (U.K.); Domestic Relations Act 1975 (N.Z.); Marriage Act Amendment Act 1976 (Cwth.) | | 31 For example, Law Reform (Miscellaneous Provisions) Act 1970 (U.K .); Domestic Relations Act 1975 (N.Z .); Marriage Act Amendment Act 1976 (Cwth .) |
| 32 G.S. Frost, Promises Broken: Courtship, Class, and Gender in Victorian England (1995); Thornton, op. cit. (1996), n. 4. | | 32 G.S. Frost, Promises Broken: Courtship, Class, and Gender in Victorian England (1995); Thornton, op. cit. (1996), n. 4. |
| n | 33 Grossberg, op. cit., n. 18, p. 38. | n | 33 Grossberg, op. cit., n. 18, p. 38.. |
| 34 Compare U. Vogel, ‘Is Citizenship Gender-Specific?’ in The Frontiers of Citizenship, eds. U. Vogel and M. Moran (1991) 59. | | 34 Compare U. Vogel, ‘Is Citizenship Gender-Specific?’ in The Frontiers of Citizenship, eds. U. Vogel and M. Moran (1991) 59.. |
| 35 See, for example, Bradwell v. Illinois 83 U.S. (16 Wall) 130 (1873). | | 35 See, for example, Bradwell v. Illinois 83 U.S. (16 Wall) 130 (1873). |
| n | 36 Compare J. Pahl, Money and Marriage (1989) 5. | n | 36 Compare J. Pahl, Money and Marriage (1989) 5.. |
| 37 Although Australia, like the United Kingdom, has a separate property regime, the courts are endowed with broad powers under the Family Law Act 1975 (Cwth.) to distribute property equitably. For detailed treatment, see S. Parker, P. Parkinson, and J. Behrens, Australian Family Law in Context: Commentary and Materials (1994). Most civil law countries and most American states have developed community property regimes which recognize the joint ownership of property acquired during marriage, but the legal significance is similarly directed to the time of divorce. For discussion of the position during marriage, see J.T. Oldham, ‘Management of the Community Estate during an Intact Marriage’ (1993) 56 Law and Contemporary Problems 99. For a discussion of the genesis of the two systems, see C. Donahue, Jr., ‘What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century’ (1979) 78 Michigan Law Rev. 59. | | 37 Although Australia, like the United Kingdom, has a separate property regime, the courts are endowed with broad powers under the Family Law Act 1975 (Cwth.) to distribute property equitably. For detailed treatment, see S. Parker, P. Parkinson and J. Behrens, Australian Family Law in Context: Commentary and Materials (1994). Most civil law countries and most American states have developed community property regimes which recognize the joint ownership of property acquired during marriage, but the legal significance is similarly directed to the time of divorce. For discussion of the position during marriage, see J.T. Oldham, ‘Management of the Community Estate during an Intact Marriage’ (1993) 56 Law and Contemporary Problems 99. For a discussion of the genesis of the two systems, see C. Donahue ., ‘What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century’ (1979) 78 Michigan Law Rev. 59.. |
| 38 The legal construction of masculinity and femininity in family law has been the subject of recent scholarly interest. Notable examples are O’Donovan, op. cit., n. 21 and Collier, op. cit., n. 24. | | 38 The legal construction of masculinity and femininity in family law has been the subject of recent scholarly interest. Notable examples are O’Donovan, op. cit., n. 21 and Collier, op. cit., n. 24.. |
| 39 For discussion of sex and legal subjecthood, see N. Naffine ‘Sexing the Subject (of Law)’ in Thornton , op. cit. (1995), n. 4. | | 39 For discussion of sex and legal subjecthood, see N. Naffine ‘Sexing the Subject (of Law)’ in Thornton, op. cit. (1995), n. 4.. |
| 40 Contracts Review Act 1980 (N.S.W.). | | 40 Contracts Review Act 1980 (N.S.W .). |
| 41 J. Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and its Legacy (1990) especially 223 ff. | | 41 J. Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and its Legacy (1990) especially 223 ff.. |
| 42 C.B. Macpherson, Democratic Theory: Essays in Retrieval (1973) 120. | | 42 C.B. Macpherson, Democratic Theory: Essays in Retrieval (1973) 120.. |
| 43 For example, N. Howell, ‘“Sexually Transmitted Debt”: A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers’ (1995) 4 Aust. Feminist Law J. 93. | | 43 For example, N. Howell, ‘“Sexually Transmitted Debt”: A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers’ (1995) 4 Aust. Feminist Law J. 93.. |
| 44 P. Baron, ‘The Free Exercise of Her Will: Women and Emotionally Transmitted Debt’ (1995) 13 Law in Context 23. | | 44 P. Baron, ‘The Free Exercise of Her Will: Women and Emotionally Transmitted Debt’ (1995) 13 Law in Context 23.. |
| 45 id., p. 24; B. Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature’ (1994) 57 Modern Law Rev. 467, 468. See, also, Barclays Bank v. O’Brien [1994] 1 A.C. 180, at 185, per Brown-Wilkinson L | | 45 id., p. 24; B. Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature’ (1994) 57 Modern Law Rev. 467, 468. See, also, Barclays Bank v. O’Brien [1994] 1 A.C. 180, at 185, per Brown-Wilkinson L |
| n | 46 Baron, op. cit., n. 44, p. 34; M. Richardson, ‘Protecting Women who provide Security for a Husband’s, Partner’s or Child’s Debts. The Value and Limits of an Economic Perspective’ (1996) 16 Legal Studies 368. | n | 46 Baron, op. cit., n. 44, p. 34; M. Richardson, ‘Protecting Women who provide Security for a Husband’s, Partner’s or Child’s Debts. The Value and Limits of an Economic Perspective’ (1996) 16 Legal Studies 368.. |
| 47 Examples are legion, and by no means confined to the more sensational criminal law cases picked up by the media, such as R. v. Johns, Supreme Court of South Australia, 26 August 1992 (unreported) in which Bollen J. stated that it was acceptable for a husband to resort to ‘rougher than usual handling’ to persuade his wife to have sex with him. For examples relating to STD, see Howell, op. cit., n. 43. | | 47 Examples are legion, and by no means confined to the more sensational criminal law cases picked up by the media, such as R. v. Johns, Supreme Court of South Australia, 26 August 1992 (unreported) in which Bollen J. stated that it was acceptable for a husband to resort to ‘rougher than usual handling’ to persuade his wife to have sex with him. For examples relating to STD, see Howell, op. cit., n. 43.. |
| 48 B. Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature – the Sequel’ (1996) 59 Modern Law Rev. 675. | | 48 B. Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature – the Sequel’ (1996) 59 Modern Law Rev. 675.. |
| 49 National Australia Bank Ltd v. Garcia (1996) 39 N.S.W.L.R. 577 (N.S.W.C.A.). | | 49 National Australia Bank Ltd v. Garcia (1996) 39 N.S.W.L.R. 577 (N.S.W.C.A.).. |
| 50 (1991) 25 N.S.W.L.R. 32 (C.A.). | | 50 1991) 25 N.S.W.L.R. 32 (C.A.).. |
| 52 (1994) A.S.C. 56–268 (N.S.W.C.A.). | | 52 1994) A.S.C. 56–268 (N.S.W.C.A.).. |
| 53 Based on the Trade Practices Act 1974 (Cwth.), s. 52, and the Contracts Review Act 1980 (N.S.W.). 54 (1994) A.S.C. 56–270 (N.S.W.C.A.). | | 53 Based on the Trade Practices Act 1974 (Cwth.), s. 52, and the Contracts Review Act 1980 (N.S.W .). 54 (1994) A.S.C. 56–270 (N.S.W.C.A.). |
| 55 A number of recent English cases have also turned on the question of whether the wife received independent legal advice. The House of Lords considered the issue in Barclays Bank v. O’Brien [1994] 1 A.C. 180. See, also, Banco Exterior Internacional v. Mann [1995] 1 All E.R. 936. | | 55 A number of recent English cases have also turned on the question of whether the wife received independent legal advice. The House of Lords considered the issue in Barclays Bank v. O’Brien [1994] 1 A.C. 180. See, also, Banco Exterior Internacional v. Mann [1995] 1 All E.R. 936.. |
| 56 See I.J. Hardingham and M.A. Neave, Australian Family Property Law (1984) 94. | | 56 See I.J. Hardingham and M.A. Neave, Australian Family Property Law (1984) 94.. |
| 57 Compare K. O’Donovan, Sexual Divisions in Law (1985), especially 112–18. | | 57 Compare K. O’Donovan, Sexual Divisions in Law (1985), especially 112–18.. |
| 58 Although Reich’s work on the conceptualization of non-traditional sources of wealth, such as employment and professional qualifications, as forms of ‘new property’ has been influential, he did not broach the subject of caring work. See C.A. Reich, ‘The New Property’ (1964) 73 Yale Law J. 733. Despite a greater sensitivity to the interests of women, as well as writing almost two decades later, Glendon also fails to address the question of unpaid work as a form of property. See M.A. Glendon, The New Family and the New Property (1981). | | 58 Although Reich’s work on the conceptualization of non-traditional sources of wealth, such as employment and professional qualifications, as forms of ‘new property’ has been influential, he did not broach the subject of caring work. See C.A. Reich, ‘The New Property’ (1964) 73 Yale Law J. 733. Despite a greater sensitivity to the interests of women, as well as writing almost two decades later, Glendon also fails to address the question of unpaid work as a form of property. See M.A. Glendon, The New Family and the New Property (1981). |
| n | 59 (1992) 29 N.S.W.L.R. 188 (C.A.). | n | 59 1992) 29 N.S.W.L.R. 188 (C.A.). |
| 60 Trusts of this kind have been judicially created in order to obviate injustice. Ironically, such devices have been commonly utilized over the last twenty years or so in property disputes arising out of de facto relationships, where divisibility has permitted separate interests to crystallize in ways not recognized within marriage. For a discussion of recent trends in Australia, see P. Parkinson, ‘Property Rights and Third Party Creditors – the Scope and Limitations of Equitable Doctrines’ (1997) 11 Australian J. Family Law 100. | | 60 Trusts of this kind have been judicially created in order to obviate injustice. Ironically, such devices have been commonly utilized over the last twenty years or so in property disputes arising out of de facto relationships, where divisibility has permitted separate interests to crystallize in ways not recognized within marriage. For a discussion of recent trends in Australia, see P. Parkinson, ‘Property Rights and Third Party Creditors – the Scope and Limitations of Equitable Doctrines’ (1997) 11 Australian J. Family Law 100.. |
| 61 For discussion, see J. Riley, ‘The Property Rights of Home-Makers under General Law: Bryson v. Bryant’ (1994) 16 Sydney Law Rev. 412. | | 61 For discussion, see J. Riley, ‘The Property Rights of Home-Makers under General Law: Bryson v. Bryant’ (1994) 16 Sydney Law Rev. 412.. |
| 62 The Hon. Justice T. E. Lindenmayer and P.A. Doolan, ‘When Bankruptcy and Family Law Collide’ (1994) 8 Aust. J. Family Law 111, 133. | | 62 The Justice T. E. Lindenmayer and P.A. Doolan, ‘When Bankruptcy and Family Law Collide’ (1994) 8 Aust. J. Family Law 111, 133.. |
| 63 B. Bennett, ‘The Economics of Wifing Services: Law and Economics on the Family’ (1991) 18 J. of Law and Society 206. | | 63 B. Bennett, ‘The Economics of Wifing Services: Law and Economics on the Family’ (1991) 18 J. of Law and Society 206.. |
| 64 O’Donovan, op. cit., n. 57; Thornton, op. cit. (1995), n. 4. | | 64 O’Donovan, op. cit., n. 57; Thornton, op. cit. (1995), n. 4.. |
| 65 N.S.W.C.A., unreported, 23 May 1994. | | 65 N.S.W.C.A., unreported, 23 May 1994. |
| 66 For detailed discussion of the ramifications, see L.J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985). | | 66 For detailed discussion of the ramifications, see L.J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985). |
| n | 67 M.L. Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (1989) 46. | n | 67 M.L. Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (1989) 46.. |
| 68 The move to contract as the governing principle of family law has been noted by commentators. See, for example, Freeman, op. cit., n. 24; Neave, op. cit., n. 26; Regan, op. cit., n. 30. | | 68 The move to contract as the governing principle of family law has been noted by commentators. See, for example, Freeman, op. cit., n. 24; Neave, op. cit., n. 26; Regan, op. cit., n. 30.. |
| 69 Bryson v. Bryant in respect of which, it might be noted, the High Court refused leave to appeal. Marcia Neave notes the ‘artificiality’ of the concept of intention in a discussion of the constructive trust in the context of de facto spouses. See M. Neave, ‘ Three Approaches to Family Law Disputes – Intention/Belief, Unjust Enrichment and Unconscionability’ in Equity, Fiduciaries and Trusts, ed. T.G. Youdan (1989) 262–4. | | 69 Bryson v. Bryant in respect of which, it might be noted, the High Court refused leave to appeal. Marcia Neave notes the ‘artificiality’ of the concept of intention in a discussion of the constructive trust in the context of de facto spouses. See M. Neave ‘Three Approaches to Family Law Disputes – Intention/Belief, Unjust Enrichment and Unconscionability’ in Equity, Fiduciaries and Trusts, ed. T.G. Youdan (1989) 262–4.. |
| 70 For an interesting case study of this phenomenon, see L. Sarmas, ‘Storytelling and the Law: A Case Study of Louth v. Diprose’ (1994) 19 Melbourne University Law Rev. 701. | | 70 For an interesting case study of this phenomenon, see L. Sarmas, ‘Storytelling and the Law: A Case Study of Louth v. Diprose’ (1994) 19 Melbourne University Law Rev. 701.. |
| 71 C. Colebrook, ‘Feminist Ethics and Historicism’ (1996) 11 Aust. Feminist Studies 295, 300. | | 71 C. Colebrook, ‘Feminist Ethics and Historicism’ (1996) 11 Aust. Feminist Studies 295, 300.. |
| 72 M. Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995) 7. | | 72 M. Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995) 7.. |
| 73 Compare K. O’Donovan, ‘Should all Maintenance of Spouses be abolished?’ (1982) 45 Modern Law Rev. 424, 431–3. | | 73 Compare K. O’Donovan, ‘Should all Maintenance of Spouses be abolished?’ (1982) 45 Modern Law Rev. 424, 431–3.. |
| 74 For example, De Facto Relationships Act 1984 (N.S.W.). For detailed analysis of the policy considerations, see M.D.A. Freeman and C.M. Lyon, Cohabitation without Marriage: An Essay in Law and Social Policy (1983); New South Wales Law Reform Commission, De Facto Relationships: Issues Paper (1981). | | 74 For example, De Facto Relationships Act 1984 (N.S.W .). For detailed analysis of the policy considerations, see M.D.A. Freeman and C.M. Lyon, Cohabitation without Marriage: An Essay in Law and Social Policy (1983); New South Wales Law Reform Commission, De Facto Relationships: Issues Paper (1981). |
| 75 Eds. of the Harvard Law Review, Sexual Orientation and the Law (1990); Dean v. District of Columbia 653 U.S. App. D.C 307 (1995); C. Overington, ‘Why can’t They Marry?’ The Age, 26 April 1997. | | 75 Eds. of the Harvard Law Review, Sexual Orientation and the Law (1990); Dean v. District of Columbia 653 U.S. App. D.C 307 (1995); C. Overington, ‘Why can’t They Marry?’ The Age, 26 April 1997. |
| 76 For example, Lesbian and Gay Rights Service, The Bride Wore Pink; Legal Recognition of Our Relationships (1994). | | 76 For example, Lesbian and Gay Rights Service, The Bride Wore Pink; Legal Recognition of Our Relationships (1994). |
| t | 77 id., p. 3. | t | 77 id., p. 3.. |
| 78 Above, n. 30. | | 78 Above, n. 30.. |