Valuing Domestic Contributions: A Search for a Solution for Family Law
Garland, Fae Sinead
Thesis or dissertation
University of Exeter
Reason for embargo
To publish the empirical data prior to the release of the thesis on ERIC.
Currently, a great schism exists in the way that the law of financial provision treats cohabiting and married couples on relationship breakdown. Given that research consistently demonstrates that women are predominantly responsible for carrying out homemaking activities regardless of employment status, at the heart of this divide is the way that the law attributes value to this traditionally female role. In the married context, on divorce, breadwinning and homemaking contributions have equal value, yet in the cohabitation context only financial contributions are recognised, with homemaking having no value attributed to it. This polarised approach has received extensive criticism from the courts, the legal profession and the academic community, both for overvaluing domestic contributions in the married context and for ignoring or at best undervaluing them in the cohabitation context. Yet, despite the agreement over the inadequacies in this area, there is a lack of consensus over the direction that reform should take, and so far attempts have been slow and have often come to nothing, especially in the cohabitation context. Furthermore, feminist opinion is divided about whether financial recognition of domestic contributions in family law poses a threat to the financial autonomy of women, encouraging patriarchal financial dependence; or whether such developments redress a glaring inequality inherent in gendered roles freely chosen within the family. Consequently, this project uses the two very differing feminist positions of Ruth Deech and Martha Fineman who embody this divide as the lens through which to explore this dichotomous tension underlying the law in this area. To test out these two feminist stances, this project uses a range of doctrinal, feminist and empirical methodology, namely interviews with legal practitioners, to compare the approaches in New Zealand, Scotland and Queensland, Australia alongside England and Wales, where each jurisdiction differentially reflects a point on a spectrum between Deech and Fineman’s contrasting positions. This project also uses focus groups with members of the public in England and Wales to ascertain the affected communities’ views on these models of financial provision. Drawing on these results, this thesis shall consider how the law of financial provision in England and Wales should divide assets on relationship breakdown in the marriage, civil partnership and the same- and different-sex cohabiting context. Should it promote financial autonomy or should it offer greater protection to those who lead gendered lives in the private sphere?
PhD in Law