Teaching Law

Monday, 27 August 2012

A Husband's Sacrificial Love and the Law

Sacrificial love: Just for husbands?*

My last post here concerned the change to wedding vows in the Sydney diocese of the Anglican Church.  Under the change, women can now 'submit' to their husbands, rather than obey. This is appropriate, apparently, because:
The husband's love is one of sacrificial love, and to submit to that kind of love is not oppressive, but is actually a joy and a great freedom.
Since this story, an Anglican minister from the Sydney diocese has released a paper upholding 'male headship [as] part of God's good ordering of all society - not just His Church' and suggesting that Christian women in leadership roles should only take such roles if they are prepared to adopt an appropriately masculine leadership style.

While both of these stories represent a view of women that holds no sway in the context of contemporary Australian life, they provide an excellent opportunity to re-evaluate the law and its assumptions.  Despite anti-discrimination legislation and other measures to uphold the status of women - not as submissive to 'male headship', but as autonomous legal actors in their own right - the law remains imbued with presumptions originating in these dated paternalistic Christian beliefs.


One area of the law in which gender stereotypes come into play is that of trusts concerning family members.  If a person transfers property, or part of property, to a family member, the question is posed: did the family member take the whole interest as a gift?  To determine this, the courts look for some reason to infer that it is a gift.  If there is no gift (no express or inferred gift) and no payment then the family member may be found to hold that property on trust for the original transferor.

One circumstance that is relevant is the relationship of the parties - and traditionally, the courts would find that a husband is presumed to have gifted his wife or children but a wife is not presumed to have gifted her husband or children.  Because that's not what wives would do under a traditional understanding of marriage and gender roles...

In the leading 1984 High Court decision of Calverley v Green, the High Court said this:
where the purchaser is the father the presumption of advancement (ie the presumption to gift the property) "is an inference which the Courts of equity in practice drew from the mere fact of the purchaser being the father, and the head of the family, under the primary moral obligation to provide for the children of the marriage, and in that respect differing from the mother". (Gibbs CJ, [4]) (emphasis added)
Originally, those relationships were the ones which equity saw as involving obligations of support owed by the person providing the consideration to the person who would otherwise be presumed to hold upon implied resulting trust: a man to his child or other person to whom he stood in loco parentis; a husband to his wife.  (Deane J [7])
This was not a uniform obligation, as pointed out by the court in Cummins v Cummins in 2006:
the presumption of advancement of a wife by the husband has not been matched by a presumption of advancement of the husband by the wife [55]
This principle resonates directly with the principle of 'male headship' espoused by the discussion paper in the Sydney diocese - indeed such concepts, central to the operation of the law, were taken from Church teaching.

In addition, traditionally, these presumptions would apply only to a lawful marriage.  From Calverley v Green again:
The exclusive union for life which is undertaken by both spouses to a valid marriage... remains the foundation of the legal institution of marriage...though it is no necessary element of the relationship of de facto husband and wife. The term "de facto husband and wife" embraces a wide variety of heterosexual relationships; it is a term obfuscatory of any legal principle except in distinguishing the relationship from that of husband and wife. It would be wrong to apply...the presumption...to a relationship devoid of the legal characteristic which warrants a special rule affecting the beneficial ownership of property by the parties to a marriage.  (Mason & Brennan JJ, [10])
In a case where a man and woman are cohabiting though unmarried there is no presumption, either of equity or human experience, that they intend their relationship to have the same consequences upon their individual property rights as marriage has upon the property rights of spouses . (Mason & Brennan JJ, [11])
You can see why same sex marriage remains a live issue - the tradition of the law sees nothing other than a 'valid' marriage as imbued with rights and obligations, attendant on its permanence (ie that it is a union for life).  While this may no longer be the case, note the dissent of Murphy J in 1984: 
I have reconsidered the law on presumptions of resulting trusts...My conclusion is they are inappropriate to our times, and are opposed to a rational evaluation of property cases arising out of personal relationships...the old presumptions are not sustainable by common experience and should not therefore be applied.  (Murphy J [2-3])

Gender Neutral Law?

Many principles and concepts at law that originated as gendered have over time become ostensibly gender neutral.  One example of this is the idea of the 'reasonable man' - a test that has characterised how the court explains to a jury, for example, what standard of behaviour is expected of people.  In the interests of gender equity however, this has changed to the 'reasonable person' - no mention of gender in the standard, right?

Well, not so simple... This is because the standard that continues to be applied is that of men - how men might behave in particular circumstances, or facing a particular issue. 

I think that the criticisms of the 'reasonable person' standard apply likewise to attempts to 'even out' the law's presumptions based on relationship status.  We might say that the same presumptions now apply to husbands and also to wives, but really the law in this area has always been framed in terms of the 'sacrificial love' of the husband and the 'moral obligation' to provide for family that is somehow qualitatively different from the love of a wife and mother.

Sexism in Society and Law

This is what makes me so apprehensive about the kinds of statements attributed in recent days to members of the Sydney Anglican diocese. 

The law is based on Christian principles - I've written here before, for example, on the Biblical principle of two souls as one flesh in the law - and the law is only slowly coming to grips with contemporary attitudes about women and men, and about relationships, marriage and family.  Only slowly is the law taking its leave of the language of the Bible and of Christianity which seems to apply language such as 'submit' and 'sacrificial love' in a gender-specific way. 

I'm not a believer in censorship, but I do believe that as a society we must call out language and attitudes that demean and inhibit women's full participation in society.  Each time we fail to do so, we leave open the possibility of the law itself failing to respect women's autonomy through the ongoing application of archaic constructs. No matter how joyous or freedom-giving they may be to individuals.

*Image from http://www.themsrevolution.com/2010/09/

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