Two recognisable elements that underpin the distribution necessary to support a claim for a beneficial interest in the family home are intention and contribution—where the latter frequently supports the requisite intention to create a beneficial interest. Since the early English cases of Pettitt v Pettitt and Gissing v Gissing, the courts have however, had some difficulty settling on the nature of intention sufficient to indicate distribution of the beneficial interest. The cases variously find the standard to be actual, implied, and imputed intention. While the importance or otherwise of these categories has been debated, the underlying purpose of intention remains establishing the parties’ own free will as to the distribution of property. Unlike property redistribution within a family law framework, courts’ role in a general law property dispute is to ascertain the parties’ own distribution. Yet in adopting the general law approach, ostensibly designed for the market transaction, courts have struggled to accommodate the intimate context of claims for a beneficial interest in the family home. The more hard line approach of earlier cases has apparently softened somewhat in recent years in recognition of the multitude of factors relevant to considering intention as to property distribution. Despite this, there is no recognition of the complexity and likely impact of gender norms on the way in which a couple makes decisions affecting their property.
This paper, by Kate Galloway, draws on the sociological literature establishing the role of gender in couples’ financial management. Against this background, it examines case law to illustrate the problem with drawing conclusions about intention as to property in the absence of accounting for gender. In the first place, it suggests that law’s approach is redolent of transaction, where intention serves the role of establishing the parties’ acquiescence as to property distribution. Further, it identifies that intention in a transactional sense fails to comprehend the likely gendered nature of parties’ decision-making in the intimate context. In doing so, the law’s preference for transactional modes of decision-making and therefore expression of intention, establishes gendered benchmarks for success in claims for a beneficial interest. The consequence of this is the likely privileging of men’s property over women’s claims.
Australasian Property Law Teachers' Association Conference, Curtin University, 26-29 September 2017