The gift: characterising exchange within intimate relationships

 

I am presently working on chapter two of my thesis on intimate partner constructive trusts. My thesis explores the gendered nature of the law in this area, asking whether it effects a just distribution of property between spouses - through equity, not through statutory family law. In this chapter I establish that the law focuses on the parties' acquisition of the matrimonial home in a way that privileges the parties' exchange in terms of a transaction. The reason for the law's inconsistency over time in my view, is because the acquisition of the home is an aspect of a complex relational exchange. The law thus falls short of encompassing the relational aspects of property distribution.

The law's emphasis on transactions is a manifestation of market liberalism and is hardly surprising in Australian private law. However while the transactional approach may serve a purpose in a commercial market context it demonstrates the poverty of legal thinking in terms of a just property distribution within an intimate context. 

In working on chapter two of my thesis I have read Richard Titmuss' The Gift Relationship (1970). In this post I set out some early thoughts on the utility of Titmuss' work in terms of explaining distribution of finances, property and services within an intimate relationship. I note that there is a considerable literature following publication of Titmuss' work in 1970, but this post relates only to my initial reactions on reading this text.

Lady Budgets: An Explainer

Every woman's dream*

The Prime Minister, Tony Abbott, again today finds himself the subject of attention following comments on a morning TV show. Asked for his greatest achievement yet as the Minister for Women, the PM said that it was 'repealing the carbon tax'. He went on to say:

'As many of us know, women are particularly focused on the household budget and the repeal of the carbon tax means a $550 a year benefit for the average family.'

Foreign Minister Julie Bishop, who herself does not view the world through the 'prism of gender', defended the PM by saying 'women's policy is everyone's policy'. She is of course correct. We would all benefit from advancing women's interests, giving substance to formal equality, ending feminised poverty and violence against women. Except that there is one thing remarkably absent from the PM's statement and indeed the government's own policies. And that is women themselves.

The PM's statement is a clear statement of the government view that equates women's economic standing with that of the household. This is incorrect and reinforces women's dependence at a structural level.

Terror: abstract and embodied

How do women respond to threats of violence?*

Over the last two days, Australian media have been filled with reports of the execution of search warrants in a number of locations in Brisbane and Sydney. Two have already been charged with terrorism-related offences as a result, and investigations continue. Security at Parliament House in Canberra has been 'ramped up' after 'chatter' revealed a security threat. These events follow the upgrading (downgrading??) of Australia's security status to 'high risk'. For all the talk of terror plots, security experts say that 'lone wolves' pose the greatest threat to our safety.

The public has been told to be alert, but reassured of our safety. The Queensland Premier has gone as far as to proclaim Queensland as the 'safest place in the world'. These reassurances only seem to me to feed into an alarmism surrounding these so-called terror threats. I note also that these events and political responses to them are proximate to the introduction of 'sweeping new powers' for Australian security agencies under the National Security Legislation Amendment Bill. Of some concern, these powers, according to Senator David Leyonhjelm will 'open the door' to torture.

In the face of the wall-to-wall coverage of these recent events, I am left unable to assess either the nature or the extent of the risk of the types of crimes described by authorities. That is principally, random acts of violence. I realise that these possible crimes are truly awful, and that the police and authorities must take action to protect the community.  I cannot, however, seem to stem a skepticism about the reality of the so-called 'threat'. I think my skepticism is borne out of seeing how police so frequently fail to respond to actual and reported threats of violence against women.

Ending Feminised Poverty

Here is my piece in Eureka Street on ending feminised poverty. 

Progressive institutional reform requires setting a clear direction confirming the value of women in all social and institutional contexts: the workplace, the home, the parliament, courts and executive, in education, sport, media and culture.

Women's property - the case for ambitious change

Were they ambitious enough?

The proposal for constitutional recognition of Aboriginal and Torres Strait Islander Australians is in the news again, with Tony Abbott putting the brakes on anything that looks like a 'bill of rights'. At the moment, it's looking like a split argument as between 'minimalists' and others - just as occurred with the republic referendum all those years ago.

I've written about my own views on constitutional recognition, suggesting that a full suite of changes is necessary to achieve the goal. In this post though, I'll explore another minimalist change to rights - that of married women's property. My suggestion is that in failing to be ambitious in the change ushered in, what looks like a win only really reinforces the status quo.

Bring back the cane: revisiting patriarchy

The head of the government's curriculum review, Kevin Donnelly, said yesterday that corporal punishment in schools was an effective way of disciplining children. The conversation continued, leading to the implication that Donnelly is not averse to reintroducing corporal punishment into Australian schools.

Australia is a signatory to the Convention on the Rights of the Child. Australia therefore has obligations to protect children from violence or abuse, by their parents or anyone caring for them (article 19); and discipline in schools should respect children's human dignity (article 28). There is no overarching statute however that implements the provisions of this Convention and regulation of schools and criminal laws that may apply, are left to the states.

A number of news outlets have conveniently summarised the legal framework on corporal punishment in schools - see eg Crikey's explainer. There seem to be examples in both West Australia and Queensland where corporal punishment is integral to some schools' program - including in one reported case, the requirement for parents to accept corrective punishment as a condition of enrolling their child.

For a government appointee ostensibly holding expertise in education and charged with advising government on matters of education, these comments and their implication are concerning. This is so despite Minister Pyne's rejection of the idea. What these views really tell us about the state of play in Australia at the moment is the resurgence of patriarchal views and patriarchal control. These views are apparent, for example, in the government's discourse around 'lifting and leaning'. Donnelly's views play into this discourse.

I'm interested in this post to explore the way in which this patriarchal attitude underpins support for corporal punishment in schools, and the lack of logic in Donnelly's ideas.

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'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.

Forced removal of children. When will government learn?

Today's media contains the sobering news that an asylum seeker known as Latifa has been detained separately from her week old infant Farus, who is suffering respiratory problems. She is permitted to visit him between 10am-4pm but is otherwise detained with her husband and two other children. Farus' father has not been permitted to visit.

The reaction to the treatment of Latifa, Farus and their family has focused on the cruelty of separating a mother and sick infant. I agree with this assessment, but I am always interested to observe the essentialising of women's role as mother. I think that it is worthwhile to look more deeply into this picture to tease out what values are at stake in our government's treatment of this woman, her child and the child's father.

Is the Queensland government man enough to really get 'tough on crime'?

The Queensland government has launched a new phase in its 'war on bikies' through a raft of new regressive legislative provisions that criminalise association and provide for mandatory additional sentencing and automatic refusal of bail. In its 'unapologetic' 'crackdown' on 'criminal gangs' the government acknowledges that there will be 'some inconvenience' to law abiding citizens, but that if we have 'done nothing wrong, there is nothing to fear'.

In this post I ask why, if the government is really serious about getting 'tough on crime', it is not engaging in open discussion about, and introducing 'tough new measures' to deal with, domestic violence, sexual violence, violence against women. Is the law and order agenda in Queensland a gendered one?

A sense of entitlement? The (gender) subtext of 'lifters not leaners'

The Coalition’s pledge to revive work for the dole and income management has reignited the inevitable claim that those receiving welfare have a ‘sense of entitlement’. The Prime Minister-elect’s own pledge to build an Australia of ‘lifters not leaners’ is indicative of this. The gist of this claim rests in an assumption of the moral or psychological deviance of welfare-recipients that itself is an unacknowledged and uninterrogated ideological stance.

The pejorative ‘leaners’ demonises those on welfare while framing the struggle over needs in a way that avoids engagement with the structural change that is required genuinely to bring along all in society in a common endeavour. 

Sex appeal and the 'disorder of women'

Did we get the vote so our sex appeal could be rated?*

The Leader of the Opposition, Tony Abbott, described Fiona Scott, one of his party's candidates for the forthcoming federal election as 'young and feisty' and that she has 'a bit of sex appeal'. The comments have gone viral, and have been widely reported in the mainstream media in Australia and overseas. Naturally, they have attracted comment - both from those who criticise his statements as sexist, and also from those who believe that the comments are at worst harmless, and at best, complimentary.


Behind the discussion about the offensiveness or otherwise of the comments is what they reveal about the place of women in public life in general, and political life in particular. It is interesting therefore to view the comments according to how we conceive of and justify civic participation.

'Family' values and the privatisation of welfare

If women have a baby outside a stable relationship, they may break the social security system.

A couple of news items in the weekend papers have piqued my interest in the ongoing conservative putsch to retain the centrality of the family in society. The first of these was a story about the Federal Opposition MP, Kevin Andrews, who has signalled a 'socially conservative change' to welfare policy under a coalition government. (Andrews' views on family are well known.)

The second is a piece in the Weekend Australian by Catholic pro-family conservative writer, Angela Shanahan opining about the importance for women of marrying a stable man. For the children.

These uncritical views rely on a combination of sentimentality and ‘facts’ about how society benefits from this institution. What they fail to reveal is the history of paternal control over women and children central to the effective operation of the family in a patriarchal society. And by family, what they mean is a married heterosexual procreative union.

These views of family implicitly blame single mothers and their children for the breakdown of society. I maintain that it is instead the narrow construction of the institution of ‘family’ that feeds into the moral (conservative) panic of social collapse. What we need instead is a re-imagining of society.

Human Embryo Research: Who Donates the Eggs?

Who donates the eggs?*

In headline news today, scientists have announced a breakthrough in human cloning. Human skin cells and a woman's egg were used to create an early stage embryo that is a copy of the original skin cell. The news is being celebrated largely because of the possibility for this process to develop therapy or cures for many afflictions.

There is also concern however over other implications of the process - principally the spectre of cloning humans themselves. Most responses I've heard on this point so far, have focused on the strict regulation of human cloning for reproduction, and the severe legal penalties for breach.

This is a complex enough issue - weighing the obvious therapeutic benefits for those suffering debilitating diseases and the concerns attendant on the technology taking us down the path of human cloning. However there is another aspect that I've not seen mentioned in the media so far: namely the origin of the 'donated' eggs.

Women's rights are human rights

Nurse-in on Bribie Island*

Well the double standard is alive and well on social media today.  Outrage - outrage - at women staging a 'nurse in' outside the Sunrise studios. The tenor of this outrage on Twitter seems to be somehow that David Koch, in calling for women to be discreet and classy in their breastfeeding habits, is simply expressing opinion and that this is not deserving of protest.

Why is Breastfeeding Scary?

Breastfeeding: it's good enough for the Saviour, why not for all?*

Daily morning TV presenter David Koch today told his audience that breastfeeding is something that should be done away from a public area – that women breastfeeding in ‘high traffic areas’ should be a ‘bit discreeter’. He made these comments in response to a report that a woman breastfeeding at a public swimming pool in Queensland was told that she could not do so, and that she should move to another secluded area or leave. 

This request is clearly in breach of s7AA(2) of the Sex Discrimination Act 1984 (Cth) (added to the Act in 2011), in that this woman was treated:

less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding.

This set of circumstances raises three related questions: why the woman may have been asked to leave; why ‘Kochie’ would have agreed that this was appropriate; and why breastfeeding would ever require such legal protection.

Faster, higher, sexier: women in sport

Sportswomen in the media - as rare as unicorns*

Sports writers Phil Rothfield and Darren Hadland, in a ‘lighthearted review of the year’s sports highlights’, today declared Black Caviar, a horse, as ‘Sportswoman of the Year’.

Their 'Sportsman of the Year' is the Australian cricket captain, Michael Clarke.

In response to outrage on social media, Rothfield pointed out that Black Caviar is a girl and implied that the piece was funny.  Unfortunately, as Wendy Harmer has so effectively pointed out, this is wrong.  He is possibly wondering why so many are so angry.

Is my body my own?

Sadly, late last month, an Indian woman, Savita Halappanavar, died of septicemia in an Irish hospital.  The source of her infection was her dying foetus.  Yet doctors refused her the termination that would save her life, because the dying foetus still had a heartbeat.  The life of this woman ended because, in accordance with the teachings of the Catholic Church, the 'life' (such as it was) of the foetus was paramount.

While press reports indicate that in Ireland obstetricians have a duty to act in the best interests of the mother, there is apparently a lack of clarity in this jurisdiction as to when the medical profession can intervene lawfully.

This case highlights, yet again, the issue of bodily integrity for women and the extent of State intervention into women's autonomy over themselves.  This concern is not limited to Ireland, but exists around the world.

Contempt for Women in the Public Sphere: A New Low or an Old Trick?

Feelings are still running high about Shock Jock Alan Jones’comment on Friday that women (ie the Prime Minister, Julia Gillard, Sydney Mayor Clover Moore, former Victorian Police Commissioner Christine Nixon) are ‘destroying the joint’.

Tory Maguire, writing in The Punch, suggests that feminists should save their energy for 'battles that might change something'.  I agree with her that it is unsurprising to hear Alan Jones make derogatory statements about women, and I agree that it becomes wearing to expend our energy on each insult leveled at women in the public sphere.  (And there have been a number of them this week.)

I do think however that concerns about women who do not have the power of the Prime Minister, Sydney Mayor or a state Police Commissioner; concerns about access to safe abortion and employment conditions, are all related to the increasingly public vilification of women - including women in power.

My question is why, in 2012, are women belittled in this way.  To ascertain this, let’s be clear: first, that it is women (not individuals) who are targeted; and that it is designed to belittle.

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.