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Suggested Structure

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Kate Galloway

on 27 March 2014

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Transcript of Suggested Structure

Suggested Structure

Thesis Statement
The law of real property is gendered - exemplified through trusts law finding 'married' women's separate estates - contributing to structural obstacles to women's economic independence
Married women's property
On dispute
subject to the court's discretion:
women compete with their spouse
women compete with third party creditors
separate estate during a relationship (when not in dispute) is not accounted for
Contemporary Separate Property
doctrine of coverture - one estate in man
Married Women's Property Acts
(19th C) - separate estates
ongoing cultural factors favouring joint estate/estate in man's name
married women's economic dependence continued
Property norms are embedded
Law of separate property within both trusts and family law embeds norms of property - derived from social, political and economic norms
Proving the hypothesis: method
Feminist analysis of common law findings re (women's) separate property using trusts law as 'data set' of doctrine
Analysing the cases
using indicators of liberal/market ideology within trusts law, identify how doctrine and its application reproduces 'resolute structures of gender' (Diduck)
General tenets of property law - reflective of liberal market - embedded within intimate partner constructive trusts. These represent a gendered world view that inhibit women's full economic engagement: failure to recognise the nature of women's contribution to mutual conjugal estate to validate a real property interest. Paradoxically dissipate independent estate through appication of same doctrine & norms
Women's economic independence is hampered by:
wage gap
less superannuation
systemic employment discrimination
caring responsibilities
unequal income distribution within family
unpaid domestic & reproductive labour
And, I contend:
deriving and maintaining separate property within a conjugal relationship
There is a paradox:
women's individual financial contributions form part of the mutual conjugal estate and so are diminished (
women's endeavours within mutual context of conjugal relationship are individualised, so diminished (

Which cases?
leading appellate decisions - binding
4 commonwealth jurisdictions - persuasive; provide diverse feasible doctrinal alternatives on same normative foundation
widely referred to in commentary: reflection of prevailing legal ideology
Feminist theoretical framework
critique of liberal legalism; focussing on dichotomies:
atomised/relational subject
autonomy/vulnerability, protection
equality/difference [including norm/exception]
Feminist method
Hunter - not systematic:
asking the woman question
including women's experience
challenging gender bias
improving condition of women's lives
promoting substantive equality
Frug - seek equality for women through law by questioning, recontextualising, attempting to unsettle existing laws
transactional focus vs relationship
arm's length/rational profit maximiser context
fails to consider power: juridical equals ignores domestic/gender hierarchy
focus on financial contribution
outweighs 'service' contribution
'service' needs to be above & beyond to count - privileges market labour
focus on acquisition, capital
reflects extension of self - represents particular type of self
disembodied, not relational
cases tend to involve/be limited to 'matrimonial' home
indicator of the private & exceptional nature of separate property
challenges legal categorisation of property
engages in the affective; the relational
relationship b/w persons; & b/w person and 'thing'
power in court to declare separate estate
discretion interpreted widely (
redistribution -
Lord Denning)
then narrowed: find estate according to law, equity

Early family law
of estates BUT
fault-based divorce: consequences for property distribution
do not redistribute property
exception to legal title
same theoretical/conceptual framework as legal title
Family law
s79 FLA
exception: outside theoretical/conceptual framework of property law

- first ascertain legal and equitable interests: starts from same theoretical/conceptual framework
Liberal market ideology based on
Embodying assumptions
rational market actors
abstracted person
public/private divide
arm's length transactions
Property reflects liberal/market norms
atomised, abstracted subjects of law - rethink autonomy
reflective of consensual dealing by rational profit maximisers
Trusts law: exemplar of property norms in determining separate estate; critique
focus on intention
equality is equity
mode of contribution = financial
failure to contextualise women's experience
Feminist response
relational approach to property
consideration of the legal self as embodied , relational
recognition of affect and home - relationship between people and place
situated, contextualised within wider context of women's economic status
Based on Jim Harvey's speech structures
Liberal/market ideology in equitable estates (trusts)
consent as measure of citizen's free will
citizens are born free & equal
property is an extension of the person
individual is paramount
= intention to create beneficial interest
= equality is equity
= contribution justifies property interest
= measurement of individual, not common,
Home [public/private]
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