Despite more than a century since the Married Women’s Property Acts came into force throughout the Commonwealth, the common law’s approach to the distribution of property between couples in a marriage or marriage-like relationship has failed to accommodate the deeply gendered experiences of men and women in intimate relations. Instead, the general law, i.e. judge-made law outside statutory family law provisions, embodies often unconscious gendered assumptions that have implications for the equitable distribution of property between men and women. In light of assumptions generally about sex equality, and about the neutrality of the law, one might ask why this underlying inequality perseveres.
This paper draws on Pateman’s articulation of the sexual contract to explain, and to navigate, the tensions inherent in the general law’s approach to property distribution between heterosexual intimate partners. It posits that the sexual contract at once establishes an equal place for women as owners of property in the liberal mould yet silences their claims for equitable distribution between them and their spouses. It helps explain the law’s differential norms of what constitutes an expression of will, and what is valued in terms of contribution—the two ingredients for establishing an interest in property. Pateman’s theorisation of women’s status simultaneously as insiders and outsiders provides a means of understanding the incongruity within the law of intimate partner trusts, the implications for women’s property, and how the law might move beyond existing constraints.