This blogpost is based on a paper presented in the Family Law and Policy stream at the SLSA 2018 conference. In it, I argued that new insights and understandings could be gleaned from examining the law’s harsh treatment of cohabiting homemakers through the lens of relational vulnerability theory. This, I argued, would show two things; that homemaker disadvantage should be understood as a state-created rather than private problem, and that relationship generated disadvantages are far broader than merely economic.
Homemaker disadvantage refers to the impact of sacrificing one’s earning capacity in order to raise a family, provide care, or look after the home. This remains a gendered problem; women are much more likely than men to undertake the bulk of homemaking work.It is a particular issue in cohabiting relationship because, unlike where the couple is married,the law offers no means of compensating a cohabiting homemaker for the disadvantage she has suffered. Instead, cohabitants are governed by ordinary property law in respect of their rights in the home. A claimant must show a common intention between the parties to share beneficial ownership of the home. The homemaker faces a particular struggle where her partner is the sole owner of the home. Unlike economic contributions, homemaker contributions are unlikely by themselvesto suffice as evidence of a common intention as to ownership. For joint ownership cases, Stack v Dowdenconfirmed that it will be presumed that the parties intended equal beneficial shares, even where economic contribution are unequal, which is more positive for the homemaker. However, as Baroness Hale remarks, “[g]iving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the homemaker with children.”
The relational vulnerability lens
Legal vulnerability scholars have been significantly influenced by Martha Fineman’s theory of universal vulnerability.Fineman sees vulnerability as inevitable and constant. Our bodies are fragile, continually susceptible to illness or injury, and dependent on the care of others at various periods of our lives. The problem is that the state presumes and demands of us that we are rational, economically self-sufficient, essentially invulnerable.
While not denying the inherent vulnerability of the human condition, my relational vulnerability framework addresses the specific vulnerability arising from relationships that are unequal and imbalanced. Here I rely on Nedelsky’s argument that all relationships are shaped by wider forces and contexts and cannot be viewed in isolation.The cohabiting homemaker’s relationship is inherently unequal because the state values economic work far more highly than care and homemaking. The homemaker cannot live up to the self-sufficient ideal, which is why her disadvantage must ultimately be viewed as state-created. There is evidence in the case law that courts often treat homemaking work as sentimental, motivated by affection or relationship rather than a proprietary interest in the home.
A broader view of disadvantage
I argue that relational vulnerability is far broader than mere economic disparity between the homemaker and her partner. I see relational vulnerability as incorporating economic, emotional, and spatial components. Importantly, it does not only arise when the relationship breaks down; this is simply when it becomes visible. The different social status between breadwinners and homemakers means that homemakers are susceptible to harm throughout the relationship, as well as on breakdown and in the future.
Economic vulnerability refers to the homemaker’s potentially reduced access to financial resources during the relationship. She is often wholly or partly dependent on her partner. On relationship breakdown, she may instead become reliant on the state. However, her greatest disadvantage lies in her financially uncertain future. She is likely to have little pension provision and is susceptible to poverty in later life.
Emotional vulnerability is more nebulous and refers to the psychological impact of being deemed unproductive and a second-class citizen. Financial dependency may mean that the homemaker lacks bargaining power during the relationship. On relationship breakdown, she faces the stigma attached to state dependency.
Spatial vulnerability draws on the sociological concept of ‘ontological security’ referring to the sense of wellbeing and belonging that comes from one’s home.The homemaker has a precarious relationship with her home, dependent on the survival of her relationship. Even in joint ownership cases, her reduced financial status means that she is vulnerable to the loss of her home, because she may be unable to purchase another. On relationship breakdown, she may be forced into less secure housing, such as private rental and be deprived of the long-term security of home ownership.
I have not proposed a solution to these issues- that is a topic for another paper and I doubt that there is a simple solution. However, I hope I have provoked debate over questions such as the responsibility for homemaker disadvantage, the extent of disadvantage, and the need for a more fundamental shift in how homemaking work is valued.
See Miller v Miller; McFarlane v McFarlane  UKHL 24, confirming that the court can include an element of compensation for “relationship generated disadvantage” when making an order for a financial remedy under the Matrimonial Causes Act 1973