Property Relations
Anne Bottomley and Simone Wong
Introduction
When the Civil Partnership Act 2004 was being debated in Parliament, the chance was taken by a number of members of both Houses to raise, again, the plight of the female cohabitant who, at the end of a period of cohabitation (however lengthy) does not, unlike her married sister, have access to the divorce courts and thereby to property orders, which allow for the redistribution of property between the parties (however economically vulnerable she might be).[149]
What seems to have developed over the past few decades is a process of ‘normalisation’ of cohabitation, in that the ‘reality’ of cohabitation as an alternative to marriage status is now recognised as a choice made by an increasing number of people and as a choice which no longer, it seems, is marked with a significant social stigma.[150] As the legal and social consequences of being born outside of marriage as ‘illegitimate’ children have radically improved, so one of the major factors inhibiting cohabitation as a choice for those still of childbearing age has been removed. More and more benefits, as well as obligations, between domestic-sexual partners are now recognised and enforced (for instance, in relation to pension rights or the inheritance of tenancies), so that, at one level, it seems that we are now in a position to choose whether to marry our partners or not, without too many negative legal consequences. And yet. . . the figure of the economically vulnerable female cohabitant returns to haunt us. No family law text can now avoid addressing her position, and how easy it is to slip into contrasting her vulnerability with the seemingly more protected position of her married sister, especially given that the canon of family law remains firmly focused on marital status. And however ‘normalised’ and routine the role and position of the domestic-sexual partner in the media, readers of daily newspapers, or TV viewers, are treated on frequent occasions to stories of not only the wronged partner left after a long period of cohabitation and fighting for some (legal) recognition of what she contributed as well as what she lost, but also to stories of women who thought that after a period of cohabitation they would be treated as ‘common- law wives’ without any clear sense (except a vague idea that it would be an equivalent to marriage) of what benefit that might bring if such a thing did, in fact, exist in this country.[151] One is left with a sense that however ‘normalised’
cohabitation has become, a significant number of women enter into it without either recognising the limitations of not having access to a property redistribution regime or taking the legal steps available to them to protect themselves (as far as it is possible) in relation to the shared use and ownership of property. The reasons for not taking steps to protect themselves need further investigation, but seem to range from believing in the myth of ‘common-law marriage’ and lack of basic legal information and advice through to believing in their men.[152]
It is not too surprising, within this frame, that the government has decided to invest a significant amount of money in an advertising campaign to let women know that there is one remaining significant disadvantage to not marrying — and that access to the divorce courts for economic orders makes a marriage certificate a valuable insurance policy.[153] But this is more than a warning to women not to slip without a lifebelt into the treacherous waters of cohabitation. The narrative of the plight of the economically vulnerable cohabitant underlines the function of marriage as a protective institution. Subtly, and very significantly, the government has made a fundamental choice here, even if only provisionally, about the location of marriage as a socio-legal institution. For the moment, the decision has been taken to keep marriage as an exclusive site of preferential significance. The centrality (and instability) of this decision is seen when we put together two trends in current socio-legal policy issues: dealing with the demands of same-sex couples for equal treatment and dealing with the figure of the economically vulnerable female cohabitant. It is therefore significant for this paper that we begin with the evocation of the latter in debates concerned with the recognition of the former.
The references to opposite-sex cohabitation in debates focused on same-sex registration seems, at first blush, rather strange. The Civil Partnership Bill was designed to meet the requirement of creating a status for same-sex couples which would satisfy the European Convention on Human Rights (ECHR) imperative for equal treatment and anti-discrimination on grounds of sexual orientation.[154] It remains questionable whether a status which is analogous to marriage, rather than opening marriage itself to same-sex partners, will be sufficient, but it is clearly the case that the British government believes the Civil Partnership Act to be sufficient and will defend it, if required, as meeting its obligations as it understands them.[155] To bring into debates on the Bill the issue of the unmarried opposite-sex cohabitant seems rather tangential; as the government reminded us with some frequency when addressing the issue of whether opposite-sex partners should be allowed to register their partnership as an alternative to marriage, it was a question of having access to a status, and opposite-sex partners already had the choice of marriage. What more could they want? Why then raise the position of those who remained unmarried?
There were two important factors at work politically here: the first involved those who had been concerned about the position of vulnerable cohabitants for some time and were looking for opportunities to remind government and the public that their position had not been addressed (as far as they were concerned) with appropriate legislation which would allow for access to the courts and the redistribution of property.[156] The presence of this lobby is particularly interesting in that in most other European and Commonwealth jurisdictions such reform has now been enacted, either in terms of treating cohabitants after a period of time as if they were married (attributing marriage status and its consequences) or, more narrowly, allowing them access to the courts for the purposes of property redistribution. These jurisdictions met what were seen as the needs of the economically vulnerable female cohabitant by extending the attributes of marriage to include her before any of them dealt with the issue of same-sex partners and the recognition of their relationships, either through registration or through attribution based on sexual-domestic cohabitation. Within this schemata, the UK is not only well behind but also, in the thinking of less progressive lobbying groups, putting the wishes of same-sex couples before the needs of vulnerable women. Thus a concern with the plight of vulnerable cohabitants became blended with a different lobby, associated with the Christian right, to raise and use this figure along with other economically vulnerable figures of carers and sharers as part of a campaign to try and derail the Bill, which they saw as legitimating a status (and sexual practices) which would undermine the centrality of marriage.[157] As the Civil Partnership Bill reached the final stages of its passage, the government announced that the position of the economically vulnerable cohabitant would be referred to the Law Commission[158] and, in the publicity surrounding the passing of the Act, made clear that civil partnership was only an equivalent to marriage, therefore maintaining marriage as an exclusively heterosexual union.
Three themes continually play through the narratives of sharing domestic lives and property as they appear in these stories: marriage, female economic vulnerability and the imperative of equal treatment. As the narratives unfold, one fundamental subtext carries the momentum forward: the question of how far the benefits of marriage should be extended to others. Whether by attribution of status, piecemeal extensions, or by more limited recognition for certain purposes, for both same-sex and opposite-sex partners the issue has been, in this country, the initial breach of the exclusive benefits of marriage. Thus, in Ghaidan v Mendoza,
Buxton LJ, in the Court of Appeal, asked rhetorically why, having swallowed the camel (of recognising unmarried opposite-sex partners), the court should now ‘strain at the gnat’ (of recognising same-sex partners).[159]
And yet, although we can bring together the trajectory of cohabitation issues with the trajectory of same-sex partnership issues, in that they both meet on the question of the exclusive nature of marriage, ‘on the ground’ (in politics, texts and general conversations) they are too often presented as quite separate issues and, following the construction of the Civil Partnership Bill debates, sometimes as antithetical to each other, or at least in competition for government time. Indeed, the particular and contingent factors which structured the debates in 2002-4 have had, we would argue, a negative impact on discussions in this area. Whilst the two trajectories cross-cut each other but remain presented as separate issues promoted by different constituencies and interest groups, it makes it possible to utilise and present them as being in competition with each other, at least in terms of priorities for reform or academic funding.[160] What, crucially, has been effected is a closure of any space to think more carefully about ‘why’ certain categories of domestic relationships should be given a special status in law and with what effect. And, further, at the bases of both trajectories, the pattern of marriage and the powers of the court in relation to divorce and ancillary proceedings are presumed, without further examination, to be valuable socio-legal assets which should be extended to, shared with, other domestic partnerships.
In this chapter, we want to begin to open up a horizon beyond a preoccupation with immediate reform issues and to cross over and through the two trajectories, in order to see at what points they intersect and what issues this then raises. We will argue that both trajectories are couched in claims to be included into the existing legal regimes of recognition, and that the basic model, which is being stretched to include other categories, is a marriage model. This presumes that the marriage model is a satisfactory model, but it also, crucially for us, carries within this pattern of reasoning a presumption that, necessarily, extension to include other groups must be based on patterns of sameness or similarity — we will call this the ‘logic of semblance’. The pattern of reasoning ‘outwards’ to allow for inclusion is interesting, in that we can trace shifts in what are seen to be the important characteristics of a relationship, which are rendered visible in order for the argument for inclusion to bite. But this then moves us to the core of our paper — it is our argument that if we become caught in the trajectory of ‘semblance logic’, we can only ‘see’ through a frame of reference that is constructed and constrained by patterns of similarity. It closes to view a very important debate for feminists, which is, simply: why should certain patterns of domestic relations be made visible in law and not others? The ‘why’ here is not addressed in terms of a larger debate about the many factors which have rendered some patterns visible to date, but rather addressed to feminists as a space to consider why we, as feminists,
would want certain patterns of relationships recognised for certain purposes. This is what we mean by a ‘new paradigm’: thinking not in terms of why the present privileges of law should be extended, but rather about what patterns we may want made visible in law.
Imagine, in order to bring our paradigm into operation, that we are in a utopian moment[161] when concerns about legal regulation are absent and we are simply dealing with an argument for why the law should recognise certain patterns of relationships for, in this case, the purposes of property re-adjustment. Our starting point begins very broadly — with the notion of a ‘shared household’, which is not defined by either sexual partners or familial relationships, but rather by a shared emotional economy. It is our contention that we should begin by envisaging such a household and then consider the kinds of patterns within such a household which might give rise to an argument for legal recognition (intervention) in relation to property issues. We could then move backwards into a discussion about whether certain patterns of relationships merit recognition either because of the high level of shared commitment which they exhibit or because of a pattern of social or economic vulnerability which arises as a consequence of the shared household arrangement. If we hold this paradigm as a place from which to view the existing patterns and calls for reform, we could begin by using this approach to highlight the ways in which patterns of semblance have played through at the moment in terms of ‘what’ is being recognised and ‘how’ it is being recognised. We can then return to the possibilities of thinking through our alternative category of ‘shared households’.