Gendered Assumptions in Family Law Decision-Making

Published date01 June 1994
Date01 June 1994
DOIhttp://doi.org/10.1177/0067205X9402200202
Subject MatterArticle
GENDERED ASSUMPTIONS IN FAMILY LAW DECISION-
MAKING
Regina Graycar*
As
the
work
of feminist legal scholars
has
convincingly demonstrated,
gendered
assumptions
underpin
much
of
our
law, including areas such as tort, property, tax
or
company
law, where
women
are
not
so readily apparent.! As the field of
law
that
most
overtly involves women,
and
deals extensively
with
relationships
between
women
and
men, family
law
shares,
perhaps
only
with
the
law
of sexual assault, the
high
visibility
of
women
as parties or participants.
It
is therefore particularly susceptible to a
gender
analysis. However,
any
such analysis
must
take place against the
background
of the
Family Law Act
1975
(Cth), legislation written in a gender-neutral fashion,
though
it
operates
in
the context of a highly gendered
world
with
all its consequences. The
purpose
of this article is to suggest some of the ways
in
which
gender
might
operate
under
the Family Law Act to disadvantage women. I will start
by
looking
at
some of
the historical incidents of
gender
in Anglo-Australian family law2 before
addressing
*
1
2
Associate Professor of Law, University of
New
South Wales; Member, Family
Law
Council; Member,
Law
Reform Commission. The views expressed
in
this
paper,
while
informed
by
insights gained
through
my
work
with
these organisations, are solely
my
own
and
do
not
purport
to
represent
those of the Council
or
the Commission. I
am
indebted
to
Sarah
Todd,
Margie Cronin,
Owen
Jessep, Hilary Astor
and
Jenny
Morgan
for
their
contributions
and
comments. The financial
support
of
the
Law
Foundation
of NSW is
gratefully acknowledged.
For a
broad
discussion of
gendered
assumptions in a
range
of areas of law, see R Graycar
and
J Morgan,
The
Hidden
Gender
of
Law
(1990). For
some
specific discussions of these areas,
see L Bender, "An Overview of Feminist Tort Scholarship" (1993)
78
Cornell
Law
Review 575
and
references cited there; J Grbich, "The Tax Unit Debate Revisited: Notes
on
the
Critical
Resources of a Feminist Revenue Law Scholarship" (1991) 4
Canadian
Journal
of
Women
and
the
Law
512;
and
K Lahey
and
S Salter, "Corporate Law in Legal Theory
and
Legal
Scholarship:
From
Classicism to Feminism" (1985)
23
Osgoode
Hall
Law
Journal
543.
On
property,
see A Bottomley, "Self
and
Subjectivities: Languages of Claim
in
Property
Law"
in
A Bottomley
and
J
Conaghan
(eds),
Feminist
Theory
and
Legal
Strategy (1993); for contract,
M J Frug, "Re-reading Contracts: A Feminist Analysis of a Contracts Casebook" (1985) 34
American University
Law
Review
1065;
and
on
remedies, see C Boyle "Book Review" (1985)
63
Canadian
Bar
Review 427 reviewing R J Sharpe, Injunctions
and
Specific
Performance
(1983)
and
S M
Waddams,
The
Law
of
Damages
(1983).
Of
course, there is a serious issue as to
what
is "family law", ie,
how
broadly
or
narrowly
do
we
describe
the
reach of
an
area of doctrine dealing
with
the family. In Australia,
there
is a
tendency
to confine "family law" to marriage, divorce
and
related issues. This
narrow
approach
is often justified
by
resort to constitutional limits
on
federal legislative
power
in
Australia (see s 51(21)
and
(22)).
Compare
the discussion
in
R Graycar
and
J Morgan,
1994
Gendered
Assumptions
in
Family
Law
Decision-Making
279
the reforms of the 1970s. I will suggest that despite
our
no-fault, gender-neutral
reforms,
gender
inequality is still manifest
in
family law (as it is
in
law
more broadly).
Finally, I will briefly examine some possibilities for change,
drawing
on
examples from
other
jurisdictions which are attempting to address
and
resolve these issues.
FAMILY LAW
IN
THE 19TH CENTURY
Having
explained that one of the
main
themes of the 1975 Family
Law
Act is
gender
neutrality,
with
a
purported
symmetry of
women
and
men, it is
important
to realise
that, until very recently, the relative positions of
women
and
men
in
family
law
were
quite formally asymmetrical. Women's situation
was
quite different from men's:
women
occupied a position of inequality
and
disadvantage. Relations
between
women
and
men
in family law could
not
under
any
circumstances
have
been
described as
gender
neutral
in
the nineteenth century. Consider some brief illustrations.
Property
Prior to the introduction of the Married Women's Property Acts,3
married
women
(along
with
infants
and
lunatics)
had
no
legal capacity. Amongst other incidents of
their status of couverture (as Blackstone
put
it, "husband
and
wife are one,
and
the
husband
is that one"4), wives could
not
own
property, except
through
some limited
exceptions created
by
courts of equity.s The doctrine of unity of
husband
and
wife
produced
numerous
detrimental legal consequences for
married
women. As Holcombe
pointed out, in relation to property, the unity doctrine "meant
that
the
law
recognized
the
husband
as the family's sole arbiter". She continued:
3
4
5
Under
the
common
law
the
property
that
a
woman
possessed
or
was
entitled to at
the
time of
her
marriage
and
any
property
she
acquired or became entitled to after
marriage
became
her
husband's
to control. Moreover, if a
woman
who
accepted a
proposal
of
marriage
sought, before the marriage took place, to dispose of
any
of
her
property
without
the
knowledge
and
consent of
her
intended
husband,
the
disposition
could
be
set
aside
as a legal fraud. Were it otherwise, a
man
could
be
deprived
of
the
property
he
had
expected to acquire
when
he
made
his proposal.
In
addition,
any
will
made
by
a
single
woman
disposing of
her
property
was
revoked
by
marriage, as
was
a
man's
will,
for the
husband
took over
her
property
upon
marriage
and
her
testamentary
capacity
during
marriage
was
severely limited. Finally,
husband
and
wife could
not
make
gifts to
each
other
after marriage;
by
the act of marrying, a
woman
in effect
made
a gift of
her
above n 1, ch
6,
especially
at
121-126
and
see also The Honourable B Wilson, "Women,
the
Family
and
the Constitutional Protection of Privacy" (1992)
17
Queens
Law
JournalS.
The first of these
was
introduced in England
in
1882; for
an
account of their
gradual
adoption
by
the Australian States, see E Campbell, "Appendix: The Legal Status of
Women
in Australia" in N MacKenzie,
Women
in
Australia:
A
Report
to
the
Social
Science
Research
Council
of Australia (1962). This also contains a comprehensive account
of
the
then
legal
status
of
women
in
a
number
of areas of "public"
and
"private" life.
Blackstone,
Commentaries,
cited
by
L Holcombe,
Wives
and
Property
(1983) at 18. See also
the
discussion
by
A Eppler, "Battered
Women
and
the
Equal Protection Clause: Will
the
Constitution Help
them
When
the Police Won't?" (1986)
95
Yale
Law
Journal788
at
792.
See, discussion
by
L Holcombe, above n 4,
in
particular,
on
the role of
the
courts of equity,
ch3.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT