Yours, Mine, or Ours? Charting a Course Through Equity’s Determination of Domestic Proprietary Interests Kathrine Galloway ORCID: 0000-0002-8047-1210 Submitted in total fulfilment of the requirements for an award of Doctor of Philosophy Submitted 24 March 2017 Melbourne Law School ABSTRACT Distributing proprietary interests between domestic heterosexual partners remains the purview of the courts of equity, using the trust. In answering the question: ‘Whose property is this?’ the courts are faced with the tension between a property law system designed for the market, and property claims arising from within a couple’s intimate lives. The law’s market orientation favours the party best able to explain their claim in market terms. Because of the gendered structures of society and the family, the process tends to favour the man. This prompts the question central to this thesis: Does equity have the capacity to determine domestic proprietary interests consistent with equality between men and women intimate partners in light of pervasive gender inequality? Existing analysis of intimate partner trusts predominantly suggests new redistributive mechanisms to resolve the problem of equality. Other work describes the law’s evolution towards more ‘familial’ approaches as ameliorating the unfairness of market norms applied to intimate relationships. This thesis adds to the literature by using relational theory to focus instead on equity’s existing property-based distributive framework, charting a course through the tensions inherent in the application of market principles to the intimate context. The tensions of individual and community, market and home, arise from the tenets of liberalism built into private law. Identifying the law’s focus on discrete transactional exchange, this thesis analyses three themes within the trusts jurisprudence — intention, contribution, and home. Re-examining the case law through a relational lens reveals that intention and contribution, overlooked or misconstrued in the search for transactions, might instead represent exchange in a relational sense. Further, the courts’ tendency to ignore home as a key to understanding the implications of the parties’ exchange can likewise be reoriented to identify a relational exchange that is relevant to determine the parties’ distribution of property. A relational analysis highlights the shortcomings in the law’s support for relations of equality. The parties have shared their lives as individuals in the intimate community of marriage or a marriage-like relationship – yet it is the party able to represent their actions in transactional terms who will succeed in a claim. A relational approach to analysing claims for a proprietary interest in the formerly shared home exposes the parties’ exchanges over time. The behaviour analysed by the courts evidences exchange that may focus on ‘home’ and relations, rather than on any discernable transaction. Such analysis reveals the possibility of intention and contribution derived not from transaction, but rather from relations themselves. The thesis concludes with a reimagined feminist judgment that synthesises the theoretical analysis of exchange in the intimate context — relational exchange — in the practical exercise of judging. It rewrites a leading Australian case, to illustrate how the law might continue to function within its existing doctrinal paradigms — but so as to accommodate the parties’ intimate relations. It charts an alternative course through the tensions of individual and community, market and home, using existing tenets of property law, with insight into alternative means to enhance individuals’ capacity for autonomy and equality before the law. i DECLARATION This thesis comprises only my original work towards the award of the Doctor of Philosophy. I have made due acknowledgment in the text to all other material used. This thesis is fewer than the maximum word limit in length. Kathrine Galloway ii ACKNOWLEDGEMENTS We live in a web of relationships that shape us, that are necessary for our very capacity for autonomy; the web interacts with and enables an irreducible capacity to initiate, to be ourselves a shaping force, to interact in ways that create. Our conception of autonomy must, then, capture this capacity for creation at the same time that it is built upon the interdependence that makes autonomy possible.1 Heartfelt thanks to the ‘dream team’, my supervisors Matthew Harding and Jenny Morgan who have shown interest in my work and development, have challenged me to improve, have read all my drafts, and who have been good company on this journey. Roger Wilkinson introduced me to the sociological literature, mentored me through the PhD process, and held a seat for me daily at the coffee shop. Melissa Castan welcomed me into her home on my Melbourne trips, and provides (almost daily) practical and intellectual support. My writing partner, confidant, mentor, and friend Peter Jones has stood (and sometimes flown) beside me the whole way. ‘Smarties’, Mary Heath, Mark Israel, Natalie Skead, Alex Steel, and Anne Hewitt helped keep me on the straight and narrow even as we collaborated on other work. Together with my friend and now dean, Nick James, they supported me in transitioning to a new job and new city without dropping the PhD bundle. The feminists listened to my ideas, gave me feedback, referred me to writers, and discussed the feminist judgment—Wendy Larcombe, Ryl Harrison, Rachael Field, Jon Crow, Allan Ardill, and the women of Melbourne Law School. Particular thanks to Wendy who picked me up on the day I needed it most. Thank you to my JCU colleagues, Mandy Shircore, Nichola Corbett-Jarvis, David Low, and Steve Graw for support and encouragement in so many ways. Tim has been endlessly patient and supportive of my work, and loving of me, taking the lion’s share of parenting and household responsibility for the many years of my post-graduate study. Our children Jemima, Finian, and Jill have urged me on, having also made sacrifices to support me: and I am grateful. Hugh, Nessie, Diana, Steve, and Peter have always afforded me the unconditional love that inspires all my work. @pleagletrainer, @mabel_tsui, @ellyfromoz, @drwitty_knitter, @nigelstobbs, @cristyclark, @trentyarwood, and @smurray38 (the Leumeah connection) have been excellent company: they have debated, cajoled, joked, and (in the case of @trentyarwood) told me to get back to work. The FB @PropertyLawGrrrls Estair van Wagner, Alexandra Flynn, and Lauren Butterly have have shared encouragement and resources. What a team. The rowing crew sets the standard for persistence and achievement. KP, Suz, Alex, Sandra, KO, and KB backed me all the way (despite laughing at me for reading during regattas). They are serious athletes who push through when the going gets tough. I acknowledge those who opened doors for me to undertake this project, in the way that I have done it, through closing doors elsewhere. Even doubters can provide powerful motivation. 1 Nedelsky, Jennifer, Law's Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2012), 279. iii CONTENTS ABSTRACT ............................................................................................................................... i DECLARATION ..................................................................................................................... ii ACKNOWLEDGEMENTS ................................................................................................... iii CHAPTER 1 — INTIMATE PARTNERS’ PROPERTY ................................................... 1 I. RESEARCH AIM AND STRUCTURE .................................................................................... 3 II. METHOD AND SCOPE ....................................................................................................... 7 1. Relationships 9 2. Trusts 10 3. Four Jurisdictions 11 4. Equality 12 III. DOCTRINE IN FOUR JURISDICTIONS ........................................................................... 13 A. ENGLAND — COMMON INTENTION ............................................................................ 15 B. AUSTRALIA — UNCONSCIONABILITY ......................................................................... 20 C. CANADA — UNJUST ENRICHMENT ............................................................................. 23 D. NEW ZEALAND — EXPECTATION INTEREST .............................................................. 26 CONCLUSION ....................................................................................................................... 27 CHAPTER 2 — TRANSACTIONS AND RELATIONS ................................................... 29 I. TRANSACTIONS ................................................................................................................ 30 A. INDIVIDUAL V COUPLE ............................................................................................... 31 1. Individualisation: The Transactional Nature of Contemporary Relations 32 2. Intimate Partners as Both Couple and Individuals 34 B. (PUBLIC) MARKET ECONOMY V (PRIVATE) VIRTUOUS HOME ................................... 36 1. The Limits of Virtue 37 2. The Limits of ‘Strict Equality’ 39 II. RELATIONS ..................................................................................................................... 40 A. INDICIA OF EXCHANGE ............................................................................................... 42 1. Communication 43 2. Transferability