Abstract
Family law confers legal rights and duties upon ‘family’ members, which may, at times, conflict with the exercise of their individual rights.1 A tension between competing rights can be seen in the context of matrimonial property law, a focus of Lecture XI in Dicey’s Law and Opinion in England during the 19th Century. The tension in this context has generally been between the property rights of individuals and the extent to which these rights are affected by marriage. Such questions are not simply of historical interest, however, as the legal regulation of matrimonial property has yet to be resolved satisfactorily. In the twenty-first century there is an added dimension. Revolutionary changes in family formation means that marriage can no longer be said to be the social norm. The question, therefore, is no longer confined to ‘How does marriage affect individual property rights?’ What must also be asked is ‘How does cohabitation and family membership generally, affect the property rights of the individuals involved in the familial relationship?’ This chapter considers how the courts and the legislature respectively have struggled in determining the ownership of (quasi)-matrimonial property and how their responses have been informed by contemporary societal trends.
I would like to thank Claire Archbold for commenting on an earlier draft. Any errors or omissions remain my responsibility.
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Notes
In his essay on ‘Social Responsibility’, Ginsberg makes reference to the notion of legal rights which are assigned to persons and which have been extended to apply to ‘other entities’, such as families. The tension between individualism and the notion that the consequences of family membership dictates the extent and enjoyment of individual rights is reflected in the general statement of Ginsberg that ‘rights founded on one set of relations might conflict with rights founded on other relations and that this involve [s] a balancing of claims in the interests of greater freedom on the whole’. M. Ginsberg, ‘The growth of social responsibility’, in M. Ginsberg (ed.), Law and Opinion Ain England in the 20th Century, Stevens & Sons Ltd, London, 1959, pp. 5–6.
A. V. Dicey, Lectures on the Relation between Law and Opinion in England during the 19th Century, Macmillan & Co Ltd, London, 1905, p. 359.
Glendon notes that in the US, marriage settlements were not used to the same extent as they were in England which, she argues, explains the earlier enactment of the Married Women’s Property Acts in that jurisdiction. M. A. Glendon, The Transformation of Family Law; State, Law, and Family in the United States and Western Europe, University of Chicago Press, Chicago, 1989, p. 111.
A. A. S. Zuckerman, ‘Ownership of the matrimonial home — common sense and reformist nonsense’, Law Quarterly Review, 26, 1978, at 55, referring to Cretney, Principles of Family Law, 2nd edition (1976), p. 258.
T. G. Youdan, ‘Equitable transformations of family property law’, in Equity and Contemporary Legal Developments (ed. Goldstein), Hebrew University of Jerusalem, Jerusalem, 1992, p. 528.
H. Lesser, ‘The acquisition of inter vivos matrimonial property rights in English law: a doctrinal melting pot’, University of Toronto Law Journal, 23, 1973, 148 at 182.
Davis et al., Simple Quarrels, Clarendon Press, Oxford, 1994, p. 103 referring to Barrington-Baker et al., The Matrimonial Jurisdiction of Registrars, Social Science Research Council, London, 1977.
Law Commission, The Financial Consequences of Divorce: the Basic Policy: a Discussion Paper (Law Com. No. 103) (1980) HMSO, London, para 13.
For a discussion of the distinction between formal equality and substantive equality in this context, see A. Diduck and H. Orton ‘Equality and support for spouses’, Modern Law Review, 57, 1994, p. 681.
See Law Commission, The Financial Consequences of Divorce: the Basic Policy: a Discussion Paper (Law Com. No. 103) (1980) London, HMSO, para 24.
Law Commission, ‘Report on Financial Provision in Matrimonial Proceedings’ (Law Com. No. 25) (1969) London, HMSO, para 69.
C. Smart, The Ties that Bind: Law Marriage and the Reproduction of Patriarchal Relations, Routledge & Kegan Paul, London, 1984.
Eekelaar, ‘Post-divorce financial obligations’, Ch. 18, in Katz, Eekelaar and Maclean (eds.) Cross-currents: Family Law and Policy in the United States and England, Oxford University Press, Oxford, 2000, p. 420.
See Eekelaar and Maclean, ‘Introduction’, in Oxford Readings in Socio-Legal Studies: A reader on family law, Eekelaar and Maclean (eds.) Oxford University Press, Oxford, 1994, pp. 1–28.
Law Reform Advisory Committee for Northern Ireland (LRAC) (2000) Matrimonial Property, Report No. 8, Belfast: The Stationery Office.
Thus extending the recommendations of an earlier English Law Commission Report on Matrimonial Property. See Law Commission, ‘Family Law: Matrimonial Property’ (Law Com. No. 175) (1988) London, HMSO. It is proposed that where a spouse or qualifying cohabitant transfers property to the other, or transfers property to both, or where one purchases property or both purchase property, the equitable ownership of that property shall vest in both spouses or cohabitants as joint tenants unless the parties agree otherwise expressly in writing.
M. Neave, ‘Property disputes in de facto relationships: commentary’, Ch. 7, in Cope (ed.) Equity: Issues and Trends, Federation Press, Sydney, 1995, p. 219.
B. Hale, ‘Family law reform: Wither or Whither?’ (1995) Current Legal Problems 217, pp. 228–9.
Arthur, Lewis, Fitzgerald and Maclean, Settling Up: making financial arrangements after separation and divorce: Report of Interim Findings (National Centre for Social Research, November 2000), para 3.4.
The aim of this is to enable the recipient to become self-sufficient. See the Law Commission, ‘The Financial Consequences of Divorce: the Basic Policy: a Discussion Paper’, HMSO, London, 1980, para. 73.
P. Symes, ‘Indissolubility and the clean break’, Modern Law Review, 48, 1985, 44 at 56.
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Glennon, L. (2003). Matrimonial Property: Legal Developments and Social Trends. In: Morgan, W.J., Livingstone, S. (eds) Law and Opinion in Twentieth-Century Britain and Ireland. Palgrave Macmillan, London. https://doi.org/10.1057/9780230504448_4
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