'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'
Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.
This paper is part of a larger project: my PhD research which is a feminist analysis of equitable proprietary interests in intimate partner constructive trusts. The focus of this presentation is property - rather than the other remedies available in the context of applications for declaration of a constructive trust (such as an account of profits, or a trust over sale proceeds). Property is valorised in our system. It offers security against third parties, the opportunity for capital gain and a right of possession - particularly important when there is a home at stake.
In turn, the law of constructive trusts embodies or interprets these ideals through its approach to determining a proprietary interest. These reinforce individual interests that are in competition with each other. They uphold our own individuality and autonomy in the liberal sense of an isolated, atomistic being whose property is an extension of self; as well as a connection with the world of the citizen and the market.
So while the intimate partner constructive trust forms its own particular subset of this area of law, the underpinning principles that justify a finding of a proprietary interest are those of the market. As lawyers who understand property law as a representation of exclusion of others from our personal domain; as an exchange of value to increase our estate value, we seek the indicia of a market transaction to justify the property. And we ignore the alternative context of property within the intimate relationship.
I explore here two early Australian decisions: Muschinski v Dodds and Baumgartner v Baumgartner. I hope to demonstrate the primacy of liberal reasoning by the courts, and also expose the 'different voice' of the applicant women.
All of these issues were relevant to the experiences of the applicants in terms of their relationship with the defendants, with the property and in decisions they made about the application of their labours, their energy and their finances. Yet none of these issues is relevant in the application of property law - they do not reflect the norms of property and to take them into account, for the courts, would amount to an illegitimate interference with the existing legal estate: a redistribution of property.