Should — or can — a model predicated upon bilateral relationships be extended beyond a bilateral model? To begin in the middle, the question of how far the model can, or should, be stretched is at issue only when we begin within the origins of the model itself, a presumption of the ‘typical household’ and the presumed patterns of economic vulnerability or shared commitment that are likely to arise. It is already clear that presumptions of a ‘typical household’ have to be modified to recognise a plethora of different living arrangements and the economic vulnerability or shared commitment which might arise from them. As the model is stretched to include other patterns of relationships, we have noted that it remains focused on bilateral partnerships, but that within this model what is exposed is a range of reasons for recognising such relationships — for instance, a focus on caring. If the reason for recognition is the factor of caring, quite simply, why should it be presumed that there is only one carer? If two sisters rather than one looked after their third sister, why should this model not be recognised? If four friends rather than two live together, why should this not be recognised?
A focus on caring takes us beyond sexual relationships and raises the issue of
protecting those who have become economically vulnerable through home sharing and especially through the role of caring. But this has now brought us full circle. The figure of the carer tends to be gendered — in both the speeches of Lord Tebbit et al and the responses from within the gay community (albeit echoing Lord Tebbit): ‘she’ is not merely daughter or sister but too often described as ‘spinster sister’. It is the economically vulnerable woman who is being brought into play. Whilst we recognise that all too often it is, still, daughters and sisters who provide the function of caring in families, we are, necessarily, concerned with two aspects to this portrayal. First, to focus on a demand for law reform via this figure is to enter into the possibility that it is only active caring which will be ‘rewarded’ via property adjustment regimes, thus reproducing patterns of expected roles and economic dependency arising from them. The second is that it continues to construct a focus based on economic vulnerability. In fact, we think that a careful analysis of case law in both divorce cases and trusts cases shows that a crucial rethinking is already well under way, which we would want to support and sustain: economic vulnerability still plays a part, but there is now a focus on the partnership aspect of the relationship as a form of joint enterprise. Attention is paid to the vulnerability that may have arisen from that partnership, in combination with an increasing realisation that the assets of that partnership should be shared equitably.[184] Although structural economic factors will still construct this picture, increasingly the specific circumstances within which the partners constructed and acted out their partnership are now a focus.
If we take the starting point of a shared household, we can then ask whether certain types of relationship do require or merit a different level or form of recognition from others. We can, if you like, look backwards to marriage and other forms of sexual/emotional partnerships and investigate the factors which might argue for differential treatment, rather than saying: this looks like this, so, based on either an equality argument or a needs argument, it should be treated analogously.