Law Commission Third Report on Family Property

The overarching judicial ideology on marriage is that it functions best outside the cold arena of law. Promises and contracts between spouses, unless sealed and witnessed, 'lack intention to create legal relations' and natural love and affection, which is what is seen as the force behind considerations within marriage hold no place for legal regulation. 'The belief that law, when it intrudes in the area of personal relations is a destructive force is clearly a belief about law.

The law's non-interventionist stance may seem callous however, when viewing the division of labour between spouses or partners sharing a family home and raising children which creates a relationship of unequal dependence with the mother as the primary care-giver and the father the primary wage-earner. This sexual division of labour remains true today regardless of the changes that have taken place both within the family and work structure of society.

It is described as a division of unequal dependence because due to the mother remaining at home or only participating in the labour market part-time, she is the economically disadvantaged partner who is most likely to suffer financial hardship if the marriage ever breaks down. CSO Social Trends of 1975 showed that of the 90% of British women who marry, 95% of the marriages place the husband as the chief economic support of the family. Despite the passage of almost 30 years, it is doubtful these figures would have changed so as to make the division of labour any different.

The woman's withdrawal from the labour market or her capacity to only work part-time so as to raise children has serious consequences for her in the eventuality that her marriage or relationship is no longer. Her loss of training, lack of work experience and probable lack of health insurance and pension would leave her on her own and without the barest minimum of economic protection. The woman, coddled and patronised as 'housewife' in the private sphere is then shoved into the public world to fend for herself.

This unequal division of labour does not look as if it will change, regardless of the steps taken by social or legal institutions. Under the Employment Act of 2002, the right to request flexible working and the possibility to request two weeks paid paternity leave were introduced. However, since enactment, only 10% of those who requested a change in work time were fathers. The reason put forth being that, for a man to seek balance between work and family life was so counter-cultural as to be seen as a lack of work commitment and thus a harbinger of the death to his career. 5

The role of law in this sphere says something by its non-intervention. It speaks of the law's assumptions as to gender roles as even in the face of the clear disparities in labour within the family, it remains silent. In this case, can it be assumed that silence gives consent? 'The man's home is his castle' may explain the law's reticence to regulate, but what of the woman? Is the man's castle to be her prison? Melanie Rosnes brings to the fore the dangers of hiding real discrimination and thus perpetuating the subordination of woman behind gender-neutral discourse of family law.

6 She states: 'The ideology of equality in family law, or the principle that both parents are equal, creates the illusion of fairness and equity, while ignoring the differences between men's and women's everyday lives, and the fact that in most cases it is women who do the day to day work of caring for children. ' Divorce – Property Distribution Husband and wife are treated as strangers to each other in terms of their capacity to acquire their own property in English law. 7 This dates back to the Married Women's Property Act of 1882 (MWPA) in which the doctrine of separate property was established.

It is seen by some as a declaration of equality but this would be to use the plain words of the Act and twist them out of the context for which they were made. The MWPA was established to prevent women from getting rid of their property (via the treachery of unscrupulous husbands), not to enable them to purchase more. It was enacted to ensure that the wealth of dynastic and aristocratic families remained intact and thus should not truly be seen as a declaration of gender equality of any sort.

The 1882 Act aside, general arguments which show the doctrine of separate property as conferring individual autonomy and thus gender equality, are said by some to ignore the division of labour within marriage wherein the man holds all the property and the woman's contributions are most likely to be in a non-financial vein. This renders the conferral of autonomy and equality useless. As Otto Kahn-Freund stated, it treats equal that which is unequal.

Some may believe that a woman in charge of her own individual property is equality, but others who embrace difference within their definition of equality and acknowledge the social and biological facts that it is women who get pregnant and women who spend time raising children, would see this as the wolf of discrimination parading in the sheepskin of equality. The Law Commission8 has argued that 'husband and wife each contribute to the home in their different ways – the wife's contributions are no less real because they may not be financial…

In our view these factors make the matrimonial home a unique item of family property and one to which a unique law of co-ownership should apply. ' This unique law was one under which a matrimonial home would (subject to a contrary agreement) be automatically co-owned by both spouses. However, as it currently stands, there is no concept of community property for married couples in English law and the activity of raising children which deprives a woman of her independent means of acquiring financial security (via participation in the marketplace) is ignored when deciding whether the house was intended to be her form of security.

This gives rise to a situation where as John Eekelaar states, 'a woman's place is often still in the home but if she stays there, she will acquire no interest in it. '9 In response to the above is the idea that to confer special legal treatment on certain members of family in their acquisition of property is to be retrogressive – and instead of bestowing equality amongst gender, it would only entrench female dependency and reward economic inactivity10.

In addition and with due respect to much of the research conducted on the issue11, it is submitted that even within the group of couples who think of their home as 'common property' there may be divergence as to what exactly this 'common property' means in its entirety. In a situation where a man purchases the family home and both he and his wife consider it to be 'theirs'; it is doubted, upon the arrival of a letter from their bank stating that the monthly mortgage instalment was now due, whether either individual would sense anything amiss in the fact that it was addressed to the husband alone.

This is because, separate and apart from the thought that the family home is 'common property', one knows that for the purposes of business, members of the outside world can only be expected to rely on the hard facts of legal ownership. The main argument against community property is a pragmatic one which finds an ally in the non-interventionist nature of English law – in an ongoing marriage, so long as there is no dispute, there is no need to determine ownership.

As Lord Hailsham stated in the House of Lords Debates,12 "litigation between husband and wife upon the ownership of property during the course of a marriage in existence and happy is virtually non-existent nowadays" and upon mentioning the 75 percent of couples who registered their property in joint names: "The question which one really must ask oneself in the light of that fact is how far is it prudent or socially desirable to legislate for the remaining one-quarter… "

Lord Hailsham's speech came in 1982, some years after the Law Commission's 'Third Report on Family Property' which was a clear rebuttal of an argument such as the one Lord Hailsham continued to state four years on. It also made clear empirical data showing that 91 percent of husbands and 94 per cent of wives who took part in a survey agreed that the home should be jointly owned irrespective of who paid for it. In the face of these facts, why was the proposal not heeded?

Why was the law still unchanged contrary to public opinion and to, it can be argued, misrepresent symbolically the values of society? Even this seems to be more than just a lack of inclination to engage in social engineering – the failure to install community property can be seen as almost a positive act – the unwillingness to follow their European counterparts the product of a strong reticence. This can then be seen as social engineering – in its attempt to keep things the way they are.

Child Custody – Is It All About the Child? Historically, law has regulated over a patriarchal society and some say much the same holds true today, the difference simply being a matter of degree. In family law, the father as of right was the one who was granted custody and guardianship of his children and it was not until 1839 that the statutory authority was granted to the courts which enabled mothers to obtain custody – and then only if the children were under seven years of age and if the mother had not committed adultery.

Men thus held extensive rights over children, rights which could also constitute power over mothers. Today, with the woman's domesticated role established, the courts have tended to leave children, especially of so-called "tender years", in her care. This has been seen from some factions as yet another extension of male-dominated misconceptions about gender roles (the idea that women are better carers because of their psychological make-up entrench the female even more into her male-appointed role as housewife and care-giver).

For others it is evidence of a biased legal system within which it is the man who suffers discrimination. It has also been said that dominant ideologies as to the rights and duties prescribed by parenthood are influenced by a father-related property model in which concepts such as ownership, entitlement, interest and control are utilised13, and all against the women and even the child.

Selma Sevenhuijsen views the current influx of father's rights groups and commentary on the gender bias geared towards men in the family law – specifically in cases of child custody – as attempts at 'patriarchal reconstruction' in the sense of a strengthening of the legal position of fathers as bearers of rights towards women and children and the re-instalment of their possessive power.

Carrying on from this is the belief stated by Carol Smart that children form a site of power relations between parents and that a father's relationship with his child is also a power relationship with the child's mother; the struggle between the man and the woman linked to the question of gender roles.

Thus, regardless of a father's real desire to gain full custody or greater access rights solely out of love for the child; to give him access is to provide him with ample opportunity to re-establish his power relation with his ex-wife and to increase his control over her (thus the father-child relationship would be more completely viewed as the father-child-mother relationship).

Smart provides examples such as the father complaining over how the children are cared for, the father arriving late to meet the children and returning them late, and threats to return to court, as evidence of the way in which increasing fathers' rights have negative consequences for women's rights in turn. It is submitted that the rights of men and women should not be seen as things to be viewed as inversely proportional where if one increases, the other decreases.

In addition, Smart criticises commentators who view women's actions in arguing against male custody as signs of selfishness or lack of maturity but she seems to have no problem demonising the actions of men who may really have no other objective than to see more of their child. Today, the 'male backlash' continues and a high court judge has recently spoken out against injustices he sees in the family legal system in particular in how it fails fathers who seek contact with their children. 16 Returning briefly to the issue of mother as the natural care-giver, there remain divergent strands of thought.

In the Canadian case Roebuck v Roebuck17, Justice Kerans stated that this view confused cultural traditions with human nature and it trapped women in a social role not necessarily of their choosing whilst simultaneously freeing men. If only a mother could nurture a child of tender years, then it was the clear duty of the mother to do so and the father was then neither obligated nor entitled to try. Here, the 'tender years' principle is seen as an example of the systemic gender bias which affects both men who seek child custody and women in society in general who wish to be defined as something other than mothers.

In another Canadian case, Young v Young18, Justice L'Heureux-Dubi? believed that: 'courts must be conscious of the gap between the ideals of shared parenting and the social reality of custody and childcare decisions. Research uniformly shows that men as a group have not embraced responsibility for childcare. The vast majority of such labour, both before and after divorce, is still performed by women, whether those women work outside the house or not, and women remain the sole custodial parent in the majority of cases by mutual consent of the parties.

Nor does a joint custody order in most cases result in truly shared custody. Rather in day-to-day practice, joint custody tends to resemble remarkably sole custody. ' The above views encapsulate the verbal tug-of-war between the ideological and the factual; the desire for a shared division of labour and the reality of the woman who does it all. Given the divergence of opinion within the society on the issue, law's job of arriving at a legal and even symbolical state of affairs which pleases everyone is not enviable.