Yours, mine, or ours? Charting a course through equity's determination of domestic proprietary interests

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 discernible 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.