Feminist Relational Contract Theory: A New Model for Family Property Agreements
| Author | Sharon Thompson |
| Published date | 01 December 2018 |
| DOI | http://doi.org/10.1111/jols.12132 |
| Date | 01 December 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 4, DECEMBER 2018
ISSN: 0263-323X, pp. 617±45
Feminist Relational Contract Theory: A New Model for
Family Property Agreements
Sharon Thompson*
In this article, a new model named Feminist Relational Contract
Theory (FRCT) is explained, justified, and applied to the context of
family property agreements and specifically nuptial agreements. Most
nuptial agreements are created amidst a complex web of power
relationships and the dynamic of these relationships often evolves over
time. However, the courts in England and Wales have not yet found a
way to recognize this without adopting a paternalistic approach. This
article proposes an alternative that could, in practice, recognize issues
of power between parties entering family property agreements, explor-
ing a recent Australian case on nuptial agreements which adopts a
more contextual understanding of contract law.
INTRODUCTION
`Feminist contract theory', David Campbell says, is `something of an
oxymoron' because in his view, it sacrifices respect for autonomy for other
political goals.
1
However, in this article I argue that an explicitly feminist
version of contract theory is not only possible but is crucial in practice. A
new model named Feminist Relational Contract Theory (FRCT) brings to the
fore the untapped potential of contract law to properly engage with gendered
issues of power without losing sight of the agency of the parties, whilst
giving new meaning to core ideas of `freedom of contract' and `autonomy'.
617
*School of Law and Politics, Cardiff University, Law Building, Museum
Avenue, Cardiff CF10 3AX, Wales
ThompsonS20@cardiff.ac.uk
I would like to thank Professor Russell Sandberg, Dr Katie Richards, and Chris Mercer
for their help with earlier drafts of this article. I am also indebted to the anonymous
reviewers of this article for their detailed comments.
1 D. Campbell, `Afterword: Feminism, Liberalism and Utopianism in the Analysis of
Contracting' in Feminist Perspectives on Contract Law, eds. L. Mulcahy and S.
Wheeler (2005) 161, at 165.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Focusing upon the law on nuptial agreements, this article will show that in
practice courts frequently make assumptions as to how individuals make deci-
sions and enter contracts.
2
Such assumptions are made out of respect for the
autonomy of the individual,
3
but can mean not acknowledging the inevitable
inequalities and hierarchies of family life that permeate the relationship and the
decision-making process. The article will begin by outlining the legal status of
nuptial agreements in England and Wales. This is a controversial context
because nuptial agreements are not binding under legislation, but pressure for
reform in the media and in parliament has increased in recent years, most
notably from Baroness Deech. If her proposed Divorce (Financial Provision)
Bill 2017±2019 were introduced, this would limit the discretion afforded to
judges
4
and would allow the possibility for housing, childcare, and other
financial needs to be contracted out of.
5
Even without reform, courts already
take a restrictive approach when deciding when an imbalance of power
between the parties will affect the weight of a nuptial agreement on relationship
breakdown, which Lady Hale referred to extra-judicially as `the worst of all
worlds'.
6
It will be argued that neo-liberal contractual principles can lead to
important context being left out of the court's overall assessment which can
lead to unfairness and a failure to recognize how parties' intentions change
over time. This is problematic because it obscures patterns of power that almost
always exist between the parties by assuming that individuals would only agree
to terms that were personally beneficial for them.
7
The second and third parts of this article will explore how a different
approach can be taken. The second part will explain and explore FRCT. This
618
2 In England and Wales nuptial agreements have not historically been characterized as
contracts, but the Law Commission (Matrimonial Property, Needs and Agreements
(2014) Report no. 343) has stated that nuptial agreements must be contractually
valid. Whilst it is unclear whether nuptial agreements are contracts and the Supreme
Court in Radmacher v. Granatino [2010] UKSC 42, at 63 treated this question as a
`red herring', Lady Hale later said extra-judicially that the majority viewed nuptial
agreements as having contractual status: B. Hale, `Equality and Autonomy in Family
Law' (2011) 33 J. of Social Welfare and Family Law 3.
3 id.
4 The legislative context of nuptial agreements encouragingly provides an opportunity
for the courts to adopt an alternative approach. The discretion of the court to deter-
mine financial provision on divorce (conferred by section 23 of the Matrimonial
Causes Act 1973) cannot be ousted by a nuptial agreement, and so the fluidity of the
law in this area provides greater scope for the court to evaluate such agreements
differently.
5 This differs from the Law Commission's stance, as reported in Law Commission,
op. cit., n. 2. The Law Commission attached a Nuptial Agreements Bill to its report
on this matter providing for binding nuptial agreements with safeguards, including
safeguards protecting parties' needs.
6 B. Hale, Keynote speech, Resolution's 30th Annual Conference, Bristol, 20 April
2018, at .
7 L.-A. Buckley, `Autonomy and Prenuptial Agreements in Ireland: A Relational
Analysis' (2010) 38 Legal Studies 164, 166.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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