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feminists@law, Vol  8, No 1 (2018)



The Influence of the  Sexual Contract on the Law’s Distribution of Property in Intimate Relationships
Kate Galloway*
This is a video of a paper given at the Sexual Contract: 30  Years On conference held in the School of Law and Politics, Cardiff University on 10-11 May  2018. This paper was part of Panel 1: The Marriage Contract, chaired by Kathryn  McNeilly. The PowerPoint slides accompanying the paper are available as a  separate file.

  

Despite more  than a century since the Married Women’s Property Acts came into force  throughout the Commonwealth, the common law’s approach to the distribution of  property between couples in a marriage or marriage-like relationship has failed  to accommodate the deeply gendered experiences of men and women in intimate  relations. Instead, the general law, i.e. judge-made law outside statutory  family law provisions, embodies often unconscious gendered assumptions that  have implications for the equitable distribution of property between men and  women. In light of assumptions generally about sex equality, and about the  neutrality of the law, one might ask why this underlying inequality perseveres. 

This paper draws on Pateman’s articulation of the sexual  contract to explain, and to navigate, the tensions inherent in the general  law’s approach to property distribution between heterosexual intimate partners.  It posits that the sexual contract at once establishes an equal place for women  as owners of property in the liberal mould yet silences their claims for  equitable distribution between them and their spouses. It helps explain the  law’s differential norms of what constitutes an expression of will, and what is  valued in terms of contribution—the two ingredients for establishing an  interest in property. Pateman’s theorisation of women’s status simultaneously  as insiders and outsiders provides a means of understanding the incongruity  within the law of intimate partner trusts, the implications for women’s  property, and how the law might move beyond existing constraints.

 



  
    * Associate  Professor, Faculty of Law, Bond University, Australia. Email: kgallowa@bond.edu.au. 

  



