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text | INTRODUCTION: ACTIVE AND PASSIVE CITIZENS
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text | Within the international community, the meaning of citizenship is
| determined by difference. It is only through the notion of non-citizenship,
| or ‘other’, that ‘the citizen’ acquires meaning. In this way, ‘we’ are
| distinguished from ‘them’. The legal meaning is assumed to be of most
| significance at the borders, that is, at the points of entry into and exit from
| the state – where passports and visas are the relevant signifiers of status.
| Within national communities, the concept of citizenship is invoked to draw
| a mantle of sameness over those deemed to be members of the community.
| Liberal theory expects the particularities of difference that characterize the
| self to be sloughed off. In one sense, there is a positive communal dimension
| associated with the suppression of the self and the erasure of particularity,
| but this carapace of universalism also serves a convenient purpose within
| liberalism because it denies difference. However, as Anne Phillips points out,
| citizenship is fundamentally a political category that cannot address the
| inequalities of the social and economic spheres.1 Corporeal differences,
| including sex, colour, sexual orientation, disability, and age are unseeable
| within the universal public realm with which citizenship theory is concerned.
| Status differences, such as marriage and parenthood, which disproportionately
| affect women, are even more elusive. Despite the declining social significance
| of marriage, the observation of Teresa Brennan and Carole Pateman two
| decades ago that ‘[w]omen, more specifically married women, constitute a
| permanent embarrassment and problem for liberal political theory’2 is still
| relevant, as I propose to demonstrate.
| In Anglophone societies, it is tacitly assumed that the benchmark citizen
| (text omitted for legal reasons)
| is a white, Anglo-Celtic, heterosexual, able-bodied, middle-class man, for it
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affiliation | * School of Law and Legal Studies, La Trobe University, Melbourne, Vic.3083, Australia
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meta | © Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
text | is he who has historically dominated political life. Traditionally, only he had
| the right to vote and to represent others.3 When the issue of women is raised,
| particularly if Aboriginal, lesbian, disabled or working class, the notion of
| citizenship is immediately challenged; there is a dissonance between ‘woman’
| and ‘citizen’ that disturbs the would-be universal.4 As the benchmark citizen
| has constructed normativity in his own image, he has been able to claim a
| monopoly over rationality, objectivity, and non-partisanship: characteristics
| deemed appropriate for the management of property, and for decision
| making in the public sphere. To enhance the norm, the ‘other’ is associated
| with the antithesis of these positive characteristics. Women, regardless of
| their personal attributes, have been constructed as non-rational, emotional
| and partial: characteristics which are inappropriate for the management of
| property, and corrosive of the claimed universality of citizenship.5
| To illuminate the gendered distinction between the benchmark citizen and
| the ‘other’ which has been camouflaged by the cloak of universalism, I turn
| to the philosopher, Immanuel Kant, who drew a distinction between active
| and passive citizenship.6 He assigned to the active category all propertied
| men of independent means. To the passive category, he assigned all women
| and any men who depended on others for their support. Because their
| dependency denied them legal personality, Kant described women and
| dependent men as ‘mere subsidiaries of the commonwealth’. While there is
| a class distinction fracturing the category ‘men’ so that some are assigned
| to the active side and others to the passive, Kant assigned all women to the
| passive side, regardless of class. This active/passive binarism has contributed
| to a discourse of gendered specificity within citizenship, underpinned by the
| fact that men’s active citizenship has been contingent on women’s
| subordination.7 Historically, the status of men as heads of households enabled
| them to engage in public affairs because their wives engaged in the necessary
| roles of production and reproduction. Thus, Fraser and Gordon suggest
| that coverture (whereby a woman lost her legal personality on marriage at
| common law) should be understood as ‘a modern phenomenon that helped
| constitute civil citizenship’.8
| With the disintegration of feudalism, marriage alone ‘retained some of
| the peculiar attributes of feudal bondage’.9 Marriage vitiated all civil rights
| for women, including the denial of legal personality.10 The control exercised
| by the husband over the body of his wife was designed to ensure sexual
| fidelity and the legitimacy of children. The control, therefore, was linked
| with the patrilineal transmission of property, which constituted the backbone
| of civil society. Vogel points out that all the prominent thinkers of classical
| liberalism connect the preservation of civil society with the harmonious
| transmission of property along family lineages.11 An understanding of the
| crucial social role of marriage, therefore, goes some way towards explaining
| why modernization of the status of marriage has been retarded and why
| civil citizenship for women, particularly married women, continues to be
| (text omitted for legal reasons)
| problematic.
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text | Although the boundary between the benchmark, or active, citizen and the
| ‘other’, or passive citizen, is not rigid, the very process of resisting the
| binarism may paradoxically reify both normativity and otherness, as noted
| in the Foucauldian analysis of Frigga Haug:
| All objects and human beings exist within relations of power; even those who resist, who
| set their faces against what appear to be the norm (homosexuals, to take one example),
| participate in the production of the norm in the very act of opposing it, by allowing the
| norm to be articulated against its abnormal opposite.12
blank |
text | There is, therefore, an inevitable downside associated with the interrogation
| of conventional gendered binarisms because it risks reproducing active
| images of masculinity and passive images of femininity. Like Bottomley, I
| reject a simplistic structural argument that ‘power relations are simply about
| men holding power to the detriment of women’.13 Nevertheless, we are all
| inescapably caught by the viscous strands of power: ‘human subjects are so
| deeply penetrated and constituted by powerful social institutions that there
| is no “subject” outside power to resist it’.14 Regardless of this insight, liberal
| legalism operates as though blanched of power, and agents of legality –
| judges, lawyers, and academics – present themselves as neutral conduits of
| legal authority. I propose to show how the judiciary uses its power to
| produce conventionally gendered citizens within a rational and objective
| cloak of doctrinalism. Legal method is accepted as neutral and authoritative,
| not only by the relevant legal hermeneutic community but by the wider
| community as well.15 Of course, the authoritative pronouncements of the
| judiciary do not operate in a vacuum, but tend to mirror and instantiate the
| more conservative views of society.
blank |
|
text | THE ERASURE OF HER WILL
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text | Freedom of contract was the significant marker of the transition from
| feudalism to modernity, or from ‘status to contract’,16 in the West. Freedom
| of contract, as its emergence from the sixteenth century onwards suggests,
| also facilitated commerce and the development of capitalism.17 While
| freedom of contract, or contractualism, became the norm for commercial
| life, it did not transform marriage, despite the fact that a specialised family
| law was one of the significant common law developments of the nineteenth
| century.18 Instead, marriage retained significant characteristics of status,19 in
| respect of which it was assumed that the conditions were non-negotiable. I
| do not wish to suggest that marriage has not changed,20 but that change has
| been retarded because of assumptions attaching to marriage as a status.
| The marriage contract itself is a very curious form of contract that
| contains both status and contractual elements. Carole Pateman argues
| that the distinctive element of the marriage contract is not the absence of a
| written contract or of a signature, but the sex act.21 The sex act was not
| (text omitted for legal reasons)
| conceptualized as an act of mutuality at common law, but an act in which
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text | the husband had the use of the body of the wife.22 That the wife’s will was
| vitiated on marriage is illustrated by the fact that a husband was immune
| from prosecution for the rape of a wife until relatively recently.23 Indeed,
| sexual intercourse is still an essential element in the constitution of a valid
| marriage and the parties cannot simply agree to dispense with it.24 The
| consummation requirement illustrates the idea of marriage as a status, for
| the requirement is implicit and non-negotiable.
| Contract law has been primarily concerned with economic exchange in
| the market.25 The contract to marry has not traditionally included the
| freedom of the parties to determine legally enforceable terms in accordance
| with this model of exchange. Although the parties may draw up a pre-nuptial
| agreement specifying the conditions of the marriage, such agreements are
| still not legally enforceable under Anglo-Australian law,26 although no longer
| void as contrary to public policy in the United States of America.27 ‘Nuptial
| contractualism’ has been steadfastly resisted for what one nineteenth-century
| American social reformer referred to as the ‘undue assertion of the rights
| of the individual at the expense of the rights of society’.28 What these ‘rights’
| are is uncertain, but it has been tacitly accepted that there is a public good
| in ensuring the perpetuation of monogamous heterosexual marriage. Even
| after married women first secured the right to initiate suit in their own right,
| courts shied away from enforcing marital agreements, including those of an
| economic nature, breached by husbands.
| Balfour v. Balfour,29 particularly the judgment of Lord Atkin, has retained
| an extraordinary currency in Anglo-Australian jurisprudence for almost
| eighty years. In an action by a wife relating to the breach of a maintenance
| agreement by her husband, the court found that the constituent elements of
| a contract were missing: there was no consideration other than ‘natural love
| and affection’ and the husband and wife lacked an ‘intention’ to enter into
| legally binding relations. Most significantly, the family was held to be a
| domain of privacy in which ‘the King’s writ does not seek to run’. Freeman,
| in exposing the weaknesses of these arguments, exhorts a rethink of the
| judicial attempt to impose a commercial model of contract in view of the
| reality of the trends towards private ordering in domestic relations.30
| Ironically, the courts long recognized a cause of action in contract if the
| promise to marry were breached, although it has now generally been
| abolished.31 Although the action for breach of promise was regarded as
| analogous with a commercial breach of contract, it was invariably instituted
| by women against men.32 A significant number of such actions were
| instituted by Australian women after enfranchisement in the early decades
| of the twentieth century. While breach-of-promise actions appear to constitute
| evidence of women possessing legal personality and exercising free will in
| accordance with the Kantian notion of active citizenship, the ‘will’ theory
| of contract was conceptualized in masculinist terms so that the contract to
| marry was ‘less binding on women who entered agreements than men’.33
| (text omitted for legal reasons)
| Hence, men were more likely to be held responsible for a breach than women
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text | who, with their rational failings, could be expected to change their minds.
| Breach-of-promise suits placed a responsibility on men to ensure that
| marriage took place and to ensure that sex was properly confined to
| monogamous heterosex. Beyond this, the law evinced little interest in the
| substance of an ongoing marriage.
| The reforms that have been effected to give women ‘equal rights’ in the
| public sphere have deflected attention away from the residual status of
| marriage. Indeed, indivisibility of the union was frequently raised as a
| justification for opposing reforms intended to improve the status of women
| during first-wave feminism. For example, one of the reasons for opposing
| the vote for women was that they already exercised it – through men.34
| Arguments about the primacy of marriage for women were also used to
| delimit their participation in the professions.35 Today, strategies such as
| paying women less than men ensure that marriage remains both an economic
| and an unequal relationship.36 A neutral veneer of legal rules has been
| invoked as part of a complex technology of gender in order to ensure that
| masculinity and heterosexuality retain their privileged status.
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|
text | TELLING TALES OF EQUITY
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text | I wish to show how assumptions of indivisibility between married couples
| continue to be produced within legal sites today, despite the prevailing
| rhetoric of equality and the recognition of separate property regimes.37 I
| illustrate my thesis by reference to a series of cases relating to real property
| that are not easily subsumed within the conventional categories of ‘property’
| or ‘family law’ because they deal with the interests of third parties, usually
| creditors. One party is the sole owner of the property but, if it is the wife,
| her interest may be trivialized or dismissed by bankers, lawyers, and judges.
| In the conceptually more interesting cases, the husband is the legal owner
| of the property, and the wife seeks to argue that she is entitled to an equitable
| interest based on her unacknowledged years of service as a wife. While the
| initiation of cases of this kind underscore attempts to disrupt the gendered
| active/passive binarism, the institutional responses simultaneously legitimize
| existing power relations with the assistance of the authoritative voice of
| law.38 I argue that the positioning of the wife as ‘the other’ to the ‘natural’
| subject of law, the husband, continues to detract from the ability of wives
| to be accepted as full citizens.39
| All of the cases I focus on arose in New South Wales, which has legislation
| devoted to revisiting unjust or unconscionable contracts,40 although the
| particular issues spill over into the uncertain terrain of equity and the
| common law. All of the cases were heard by the New South Wales Court
| of Appeal, and are of particular interest because of the inchoate recognition
| that an assumption of indivisibility poses an impediment to a wife’s
| (text omitted for legal reasons)
| personhood. In fact, only Kirby P. (now of the Australian High Court) was
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text | prepared to challenge orthodoxy. All of the cases date from the 1990s which
| I draw to the reader’s attention because it is commonly assumed that formal
| equality between the sexes has been attained.
| The concern with property may suggest a middle-class bias, but ownership
| of the family home is a working-class, as well as a middle-class norm,
| particularly in Australia. A focus on ‘private’ property also suggests an
| Anglocentric bias, but I am highlighting the inter-relationship between property,
| benchmark men, and active citizenship. ‘Others’, whether they be women
| and/or Aboriginal people, are perennially placed in the situation of having
| to contest rights to property and citizenship. Property is not some effete
| patriarchal concept, for it continues to be symbolically central to liberty and
| individual autonomy within liberal societies.41 The noted political theorist,
| C.B. Macpherson, goes further in his assertion that the ‘concept of man [sic]
| is clearly inextricable from a concept of property’.42
blank |
text | 1. Indivisibility and liability
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text | Cases dealing with what has been termed ‘sexually transmitted debt’ (STD)43
| or ‘emotionally transmitted debt’ (ETD)44 in which women have been
| pressured to assume responsibility for the debts of their partners, and/or
| other family members, are familiar, although there has been an increase in
| the number of cases in which women have challenged the imposition of
| liability.45 The wife is frequently a silent partner in a family business,
| although not intimately involved in its management. She may have been
| unaware of the significance of the documents she has signed or there may
| have been fraud or deception on the part of the husband or partner. The
| fraud cases are more likely to succeed in an unconscionability action than
| one based on undue influence.46
| Beneath the seemingly neutral veneer of legal doctrinalism, judges have
| tended to depict wives as passive, ill-informed and obedient to the will of
| their partners, values that are corrosive of the notion of active citizenship.47
| However, the construction of a more companionate and equal relationship
| has not necessarily redounded to the benefit of wives when confronted by
| the interests of creditors, for the creditors are invariably given priority as a
| matter of policy.48 Indeed, the legal presumption that a wife who acts as
| guarantor for her husband occupies a position of special disadvantage
| because she is under pressure from her husband no longer prevails in
| Australia.49 The wife is assumed to be fully cognisant of the legal implications
| flowing from her signature, even if she is unaware of the circumstances
| surrounding the debt. While the stereotyping of all wives as disadvantaged
| is disabling, the ‘equality of women’ argument may also be indirectly
| disabling in the STD context, for it does not distinguish between the interests
| of women as separate individuals and their husbands vis-à-vis corporate
| (text omitted for legal reasons)
| creditors. Thus it is somewhat ironic that a contemporary liberal equality
| argument is being used to reproduce an outdated notion of Kantian passivity
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......@@ -314,30 +84,10 @@ text | for women. The overwhelming significance of the interests of cor
| one judge to question this assignation:
| One can see at work in the facts of this case the remnants of an attitude to a wife, as a
| mere extension of the husband’s property and financial interests. (p. 35)
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text | Meagher J.A. (dissenting) acknowledged the forgery but adopted a formalistic
| approach to the registration of the mortgage, which masked the way in
| which the wife’s legal personality had been erased.
| In Morris v. Wardley Australian Property Management Limited,52 the
| question of the severability of the wife’s interests arose as a result of a
| guarantee in respect of a company that collapsed. In this case, there was no
| forgery because the wife was alleged to have executed a power of attorney
| in favour of the husband who had then signed a guarantee on behalf of
| them both. However, the wife sought to argue that she was not liable because
| she knew nothing about the business and had dutifully signed every
| document that her husband put before her, as she herself testified:
| My practice has been that if Theo has asked me to sign a document then I would sign
| it without question’. (p. 58,818)
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text | Perhaps unsurprisingly, the wife’s argument as to severability was
| unsuccessful.53 Evidence of neither undue influence nor unconscionability
| was formally established in respect of the power of attorney. The strict legal
| presumption that one should not go behind a signature freely given
| effectively obscures the peculiarly gendered assumptions that continue to
| underpin marriage and that are bolstered by judicial authority.
| Kirby P. (dissenting) elaborated upon the argument he articulated in
| Gosper that a wife can no longer be regarded as the ‘mere legal appendage
| of her husband’ (p. 58,814). He stressed that the wife had the basis for a
| (text omitted for legal reasons)
| defence arising from her separate position and should not have been held
| jointly liable for an indemnity agreement she did not execute. She had
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text | received no separate legal advice and was disadvantaged by the assumption
| that she should guarantee her husband’s obligations merely because she was
| his wife (p. 58,819).
| The view of Kirby P. that the interests of the wife might be severed from
| that of her husband won little favour with the other judges. Although
| Mahoney J.A. agreed that ‘it would be a mistake if courts treated wives who
| asserted their separate status as nothing more than the alter egos of their
| husbands’ (p. 58,820), he saw no reason to overturn the assessment of the
| wife’s evidence by the primary judge. Meagher J.A. was sceptical that the
| wife was ignorant about the business and signed everything put in front of
| her by her husband. If she did, he saw that as a positive act. As he acerbically
| put it: ‘commendable marital obedience to one’s husband has not yet
| blossomed into a legal or an equitable defence’ (p. 58,821). Indeed, the stance
| of Meagher J.A. reminds us that the shadow of coverture has not entirely
| receded.
| A variation of Gosper and Morris arose in Gough v. Commonwealth Bank
| of Australia,54 in which the majority judges, Mahoney J.A. and Meagher
| J.A., found against the wife’s separate interests. As in Gosper, the wife was
| the sole owner of the family home, which she had brought into the marriage.
| With her husband, she was director of a tyre business, although her actual
| role in the business was minimal. Indeed, the evidence revealed that she had
| a very limited education and did not read very well. She had nevertheless
| signed a mortgage over her home without the benefit of legal advice. The
| business collapsed and the bank sought to foreclose on the mortgage. Ms
| Gough then claimed that she did not know that the property was mortgaged.
| The question was whether the lack of independent legal advice at the time
| of the signing of the mortgage made its foreclosure unjust. The majority
| found that it did not.
| Mahoney J.A. was prepared to accept the evidence of the bank manager
| rather than that of the husband and wife regarding the casual manner in
| which the mortgage was signed. He found it ‘unlikely that he [the bank
| manager] would have had a mortgage signed by a mortgagor in such a way
| that she did not know that what she was signing was a mortgage’ (p. 58,852).
| Meagher J.A. also placed more faith in the socially authoritative voice of
| the bank manager and in the formal weight of the wife’s signature. He was
| sceptical about Ms Gough’s limited understanding: ‘the plaintiff may not
| be extremely sophisticated or well-lettered, but she is no gaping rustic’ [my
| italics] (p. 58,856). (In this case, the classism is as disturbing as the sexism.)
| Kirby P. (dissenting) again challenged the fact that ‘some women are still
| treated by some financial institutions as appendages of their husbands’ (p.
| 58,843). In fact, the transcript of the primary hearing suggests that the
| husband himself treated his wife as an appendage:
| (text omitted for legal reasons)
| Q: But it was her home as well?
| H: Yes, that is right.
| Q: And indeed, it was her house, but that was a matter which you discussed with her?
......@@ -401,42 +112,7 @@ text | H: No it wasn’t . . .
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text | As with Morris, Gough clearly reveals how marriage can operate to
| diminish the legal personhood of a wife; no other legal proprietor would be
| similarly treated. I am not suggesting that obtaining independent legal advice
| would necessarily have resolved the problem, for lawyers have been no more
| solicitous of the financial and property interests of women in intimate
| relationships with men than husbands, bank managers or judges, even if the
| wives are their clients, as Gosper reveals. What I am suggesting is that the
| failure to recommend independent legal advice underscored the presumption
| of indivisibility of the wife’s interests.55
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text | 2. Indivisibility and affectivity
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text | Registration of the family property in the husband’s name alone reflects his
| traditional role as paterfamilias in separate property regimes. This situation
| has been destabilized by recent attempts to argue that the wife has an
| equitable interest that should be legally recognized. There are two strands
| to the equity argument. The first is that because the wife has contributed to
| the value of the property in a material way (for example, by working on the
| farm or effecting home improvements), it would be unjust for the husband
| to enrich himself at his wife’s expense.56 The second, and the more radical
| idea, is that the wife’s interest in the property should be recognized because
| the ability of the husband to earn income has been predicated on the wife
| undertaking the conventional role of carer and homemaker.57 For the
| purposes of my argument regarding active citizenship, it is also apparent
| that the husband’s acquisition of wealth and property has enabled him to
| acquire social capital within the market and civil society which has translated
| into active citizenship for him, but not for his wife. The legal recognition of
| the non-financial contributions of the wife is now well accepted in effecting
| an equitable property settlement at the time of divorce in separate property
| regimes,58 but not during the marriage when, somewhat paradoxically, unity
| of interests is assumed.
| In Bryson v. Bryant,59 the family home was registered in the name of the
| husband, who had been married to the wife for sixty years. The wife died
| first and left her estate to her brother. The husband died a few months later,
| leaving his estate to a charity. The brother was the plaintiff in an action
| which endeavoured to establish that the wife had a severable interest in the
| property through a resulting or constructive trust.60
| The majority of the New South Wales Court of Appeal (per Sheller J.A.
| (text omitted for legal reasons)
| and Samuels A-J.A.) rejected the plaintiff’s claim that the wife was entitled
| to an equitable half-share in the property. Relying on the well-known legal
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text | fiction of intent, the majority judges found that the parties had not ‘intended’
| to create such a trust for the wife at the time the property was acquired
| almost sixty years before. The material contributions of the wife were
| discounted, including the making of curtains and other furnishings, as well
| as the help she gave with the building of the house. Neither were the majority
| judges prepared to accord economic value to the period during the Depression
| when the wife was the sole breadwinner. There were no children, but the
| wife provided the husband with ‘complete domestic support’ (p. 214).
| The reliance on the wife’s domestic contributions to ground an interest
| in property was the most interesting aspect of the claim. Unsurprisingly, this
| work was not deemed sufficient to ground an intention to create a trust: ‘I
| am by no means persuaded that a resulting trust can be presumed in a case
| where the contribution to the acquisition of the property is other than
| financial’ (p. 227, per Samuels A-J.A.). The suggestion is that the legal
| personhood of the wife could be recognized only if her contribution were
| conceptualized in severable economic, or conventionally masculinist, terms.
| That is, had it been established that the wife had contributed a certain
| amount of money towards the purchase price, an equitable interest might
| conceivably have been acknowledged although, given the history of the
| judicial handling of marital property, one suspects that even monetary
| contributions would not have sufficed.
| Kirby P. (dissenting) acknowledged the difficulty courts have had in
| recognizing the conventional contributions made by a wife compared with
| commercial or stranger relations. He acknowledged that there should not
| be a preoccupation with material contributions in an endeavour to analogize
| the marital relationship with a commercial relationship. Kirby P. was
| prepared to find the retention of the whole of the property by the husband
| (and his heirs) to be unconscionable.61 In other words, caring and housework
| should ground a severable interest in the property. The approach of Kirby
| P. is described as the broadest to date in relation to ‘contributions’ in the
| form of domestic services.62
| Housework and caring work, conceptualized as arising from ‘love and
| affection’, have historically been discounted as consideration in contract
| because there is no reciprocal exchange, it is averred; such contributions are
| simply gifts freely given. It is assumed, no doubt rightly, that the domestic
| sphere should not be subjected to the values of the market. If it is, ‘wifing
| services’ are invariably devalued.63 The imposition of the market norm is
| the problem. However, the highflown language of affectivity ensures that
| the ‘private’ carapace continues to envelope the domestic so that scrutiny is
| resisted.64 The maintenance of the public/private boundary, through
| adjudicative and bureaucratic technologies, enables the husband to maintain
| his position as the active citizen. He can leave the home and participate in
| the market, civil society, and the polity as he chooses. The homemaker wife
| (text omitted for legal reasons)
| is caught by the characterization of her labour as that which is done for
| love and affection, which translates into passive citizenship in the Kantian
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text | sense, for it assumes economic dependency on an active citizen. This is the
| case even when the work done for ‘love and affection’ directly generates
| income, as in the case of farm work, which I shall now illustrate.
| In Lorna Pianta v. National Australia Bank Ltd.,65 the husband and son
| were the registered owners of a farm. The respondent bank foreclosed on
| the mortgage. In an attempt to resist foreclosure, the wife argued that her
| relationship with her husband of fifty years was not one of dependency,
| since she had worked on the farm in addition to having lived there.
| Accordingly, she argued, her material contributions to the farm gave rise to
| an equitable interest that should have been legally protected. The question
| was whether the bank knew, or should have known, of Ms Pianta’s interest.
| The majority rejected her appeal. Mahoney J.A. found that there was ‘no
| arguable case’ in favour of an equitable interest. Handley J.A. also ruled
| out the possibility of an equitable interest in the absence of a formal
| relationship: ‘There is no suggestion that the relationship of banker and
| customer existed between the claimant and this bank which predated the
| purchase of the subject property’ (p. 8). In any case, a formal relationship
| of this nature would not necessarily have helped Ms Pianta to establish that
| she was, in fact, the business partner of her husband and son: ‘because a
| passive partner [my italics] is bound by the acts of the other partners who
| deal with third parties in good faith’ (p 8). The reference by Handley J.A.
| to the ‘passivity’ of Ms Pianta may be a reference to a dormant partner in
| a commercial relationship, but he can also be seen to be echoing the Kantian
| view of woman as passive citizen who should be represented through her
| husband. Despite the fiction of dormancy, Ms Pianta had contributed
| actively to the partnership for fifty years. Under the rubric of ‘love and
| affection’, her work counted for nothing in the face of a formally executed
| mortgage to a powerful corporation. Kirby P. (dissenting) once again argued
| that the wife’s interests should be separately considered, for the issue is one
| that goes to the heart of equity:
| Sadly, this pattern of indifference to the separate interests of a vulnerable (usually female)
| member of a relationship when it comes to disposing of property in which that person
| asserts an equity is all too common. Indeed, this is the nature of vulnerability and
| occasions the need for the protection of equity (p. 3).
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text | The paradigmatic contract involves two unrelated persons who come
| together for commercial purposes. Legal relations are then unproblematic
| in the event of a breach. The ‘breach’ within a non-commercial contract or
| ‘services for love and affection’, that is, conventional marriage, has little
| chance of success within a judicial forum where it is accepted that a
| commercial contract is the norm, as I have already pointed out. The
| ‘otherness’ of the contributions of a homemaker wife cannot be evaluated
| in the light of the commercial analogue. These contributions are deemed
| insubstantial when contrasted with the normative financial contributions of
| (text omitted for legal reasons)
| the man of property, the benchmark citizen.
| If wives, in any of the above instances, or in similar scenarios, had sought
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text | to divorce their husbands, their interests would have been dealt with differently.
| At the point of formal separation, it is recognized that the wife’s legal
| interests are about to crystallize as separate and divisible, albeit contestable.66
| It is then accepted that cognisance should be taken of her unpaid labour
| during the marriage. However, it would appear that formal recognition of
| the divisibility of interests during marriage is more dangerous than when
| the relationship has broken down. This observation echoes Mary Lyndon
| Shanley’s view of the reason for antipathy towards married women’s
| property legislation in England in the nineteenth century:
| Indeed, the idea of married women’s property rights posed a much greater threat to the
| notion of family unity than did the provisions for divorce itself. Divorce simply gave
| legal recognition to de facto marital breakdown. A married woman’s property law, on
| the other hand, would have recognized the existence of two separate wills within an
| ongoing marriage.67
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text | It is apparent that the struggle to recognize two separate wills within
| marriage has still not been juridically resolved, despite a century of Married
| Women’s Property Acts, enfranchisement, remedial legislation, and dramatic
| social change. In the stories I have related, the wives were cohabiting with
| their husbands, unless separated by death and, in all cases, marriage created
| a presumption of indivisibility against the interests of a third party. It is this
| question of divisibility of a wife’s interests during marriage that has been
| accorded scant attention.
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|
text | CONCLUSION
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text | The modernist elements of contract and the prevailing philosophy of liberal
| individualism are corrosive of the presumption of indivisibility in marriage,68
| as are claims that housework and caring work should ground a beneficial
| interest in property. Although never openly articulated, moves towards
| recognition of divisibility of interests generate a resistance so that judicial
| sites of power are activated. From their authoritative positions as arbiters
| of truth, judges are empowered to reproduce conventional marital relations.
| As legal knowledge producers, we have seen how they can sanction the
| actions of husbands who demand that their wives sign documents without
| explanation, and they can sanction similar actions by financial institutions
| and lawyers. Judges may claim to be mere interpreters of the law of trusts,
| dispassionately ascertaining the ‘intention of the parties’ but, if this intention
| has to be determined as it was sixty years earlier when the couple eloped,
| one would think that divine inspiration would have been necessary to assist
| them in the task.69 Judges, however, possess an authority that endows their
| words with the imprimatur of legitimacy; their utterances are not dismissed
| as fictions – a fate that may still befall a wife’s evidence. I have endeavoured
| (text omitted for legal reasons)
| to show how the rational voice may be deployed to disqualify the affective
| one in a rearguard attempt to maintain conventional gender relations.70
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text | My purpose has not been to validate juridical flights of fancy, nor to
| embark on an excursus as to the subtle differences between resulting and
| constructive trusts, or the respective merits of separate property versus
| community property regimes; rather, it has been to show how the status of
| marriage continues to detract from the ability of married women to be active
| citizens. The legal stories that I have recounted reveal that marriage is a
| terrain of contestation as wives struggle to have their legal personality
| recognized. Although not all judges share the view that women should be
| properly ‘manned’ within heterosexual relationships, that remains the
| dominant view.
| The dramatic changes that have occurred in women’s lives over the past
| century render it impossible to avoid the progressivist narratives of feminist
| history,71 thereby averting a bleak conclusion. Nevertheless, as Martha
| Fineman reminds us, ‘the functioning family remains the most gendered of
| our social institutions’.72 Her solution is to abolish marriage altogether as a
| legal category.73 Instead of sexual intimacy as the basis of the family, she
| argues for caretaking, as exemplified by, but not restricted to, the mother/child
| dyad. Nevertheless, abolition is not presently a viable option, as Fineman
| herself recognizes, despite its appeal as a revisioning strategy. Despite the
| decreasing popularity of marriage, there are earnest moves to retain it as a
| legal institution, albeit it in a somewhat different form.
| First, marriage is invoked as the template for legal recognition of de facto
| heterosexual relationships.74 The assimilation of de facto and de jure marriage
| is one of the notable social phenomena of our times. Indeed, it may be hard
| to tell the difference when similar arrangements are made about property
| and its management, particularly if there are children. Secondly, marriage
| is aspired to as a model for other non-traditional relationships. Some lobbies
| within the gay and lesbian communities argue that the refusal of the state
| to recognize homosexual marriage amounts to discrimination,75 while others
| argue for a re-definition of de facto relationships to include lesbian and gay
| relationships.76 The concerns regarding property and familial obligations on
| separation or death raise similar issues in both heterosexual and homosexual
| relationships. The focus of marriage-like arrangements tends to be directed
| to the material consequences of separation. During the relationship, an
| equitable argument would undoubtedly be easier to formulate without marriage
| because the notion of divisibility is less likely to be impeded by the gendered
| asymmetry associated with marriage. Such issues, together with the cases I
| have considered, are reminders of the critical role of marriage in safeguarding
| property – the basis of civil society and, in turn, active citizenship. Marriage
| is more than a ‘significant personal relationship’.77
| However, I do not wish to suggest that the key to change necessarily
| resides in contractualism, for the production of gender relations is pervasive.
| While sloughing off the status dimensions of marriage would be a positive
| (text omitted for legal reasons)
| step, pre-nuptial, nuptial, and ex-nuptial contracts are also inherently
| problematic, in part because they are subject to judicial scrutiny;78 they are
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text | not private. Their validity is dependent on judicial readings of prevailing
| legal and social norms. Thus, the privileging of the interests of financial
| institutions, for example, may reflect the economic rationalism of the times.
| While there is always scope for innovation and responsiveness to changing
| social mores, the crucial role of interpretation may also legitimate the
| masculinist and heterosexed status quo which, for a majority of judges,
| constitutes normal life.
| The power of law in actively constituting gendered citizens should not be
| underestimated, despite the rhetoric of formal equality. I have sought to
| show that adjudication is the ostensibly neutral site where partial accounts
| may be legitimized for reproduction by financiers, bankers, and lawyers, to
| say nothing of men and women themselves. In this way, we see the Foucauldian
| notion of power in perpetual motion, operating at multiple sites, reproducing
| (text omitted for legal reasons)
| conventionally gendered citizens within heterosexual relationships behind a
| façade of universality.
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