Relational Vulnerability: Theory, Law and the Private Family [1 ed.] 9783030613570, 9783030613587

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PALGRAVE SOCIO-LEGAL STUDIES

Relational Vulnerability Theory, Law and the Private Family Ellen Gordon-Bouvier

Palgrave Socio-Legal Studies

Series Editor Dave Cowan School of Law University of Bristol Bristol, UK

The Palgrave Socio-Legal Studies series is a developing series of monographs and textbooks featuring cutting edge work which, in the best tradition of socio-legal studies, reach out to a wide international audience. Editorial Board Dame Hazel Genn, University College London, UK Fiona Haines, University of Melbourne, Australia Herbert Kritzer, University of Minnesota, USA Linda Mulcahy, University of Oxford, UK Rosemary Hunter, University of Kent Carl Stychin, University of London, UK Mariana Valverde, University of Toronto, Canada Sally Wheeler, Australian National University College of Law, Australia.

More information about this series at http://www.palgrave.com/gp/series/14679

Ellen Gordon-Bouvier

Relational Vulnerability Theory, Law and the Private Family

Ellen Gordon-Bouvier School of Law Oxford Brookes University Oxford, UK

Palgrave Socio-Legal Studies ISBN 978-3-030-61357-0 ISBN 978-3-030-61358-7 https://doi.org/10.1007/978-3-030-61358-7

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Contributor: Stone Bay Photography/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For my family

Acknowledgements

This book builds on and develops the research that I carried out for my Ph.D. at the University of Birmingham. My supervisor, Rosie Harding, provided me with invaluable support and guidance and I remain very grateful to her for this and to my examiners, Anne Barlow and Lisa Webley for their helpful comments on how my research could be taken forward. I also want to thank my colleagues at Oxford Brookes University for their support and friendship when writing this book. Thanks to various conversations and discussions, I have been able to develop and refine many of the ideas in this book. In particular, I want to thank Lucy Vickers, Peter Edge, Beverley Clack, Chris Lloyd, Scott Morrison, Tobi Kliem, Aravind Ganesh, Yue Ang, Sonia Morano-Foadi, and Chara Bakalis for the helpful conversations that I have had with them about my research. I also want to thank the members of the Centre for Diversity Policy Research and Practice for inviting me to their events and lunches, especially Anne Laure Humbert, Heather Griffiths, Kate Clayton-Hathaway, Alexis Still, and Meike Tyrrell. I received some very helpful feedback on the ideas that formed the basis of this book at the SLSA conference in 2019 in a vulnerability-themed stream organised by Jess Mant, Roxanna Dehaghani, and Daniel Newman from Cardiff University. I have also had useful discussions about vulnerability with Fae Garland, Jane Krishnadas, Donna Crowe-Urbaniak, and Anna Heenan, prompting me to think about new angles to some of the issues raised in the book.

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Acknowledgements

I had been due to spend three weeks as a visiting scholar at the Vulnerability and Human Condition Initiative at Emory University in April 2020. Sadly, the COVID-19 pandemic prevented this from going ahead. However, I would like to thank the members of the Initiative, especially Martha Fineman and Mangala Kanayson, for their help and assistance with organising the visit. As I hopefully make clear in this book, Professor Fineman’s work has inspired me hugely, and I hope to be able to visit Emory at some point in the future. Finally, I am very grateful to the series editor, Dave Cowan, for his helpful and incredibly constructive comments on draft book proposals, and the editorial support that I have received from Palgrave Macmillan, especially from Josie Taylor and Liam Inscoe-Jones. Ellen Gordon-Bouvier

Contents

1

Introducing Relational Vulnerability Being Vulnerable: The Inherent Human Condition Expanding the Boundaries of the Universal Model A Theory of Relational Vulnerability: Core Claims Chapter Summaries Conclusion Bibliography

1 3 5 10 14 18 19

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Embodiment, Temporality, and the Private Family Embodied Vulnerability: Temporality and Rhythms Embodied Vulnerability and Relationality Frozen in Time: The Autonomous Liberal Subject The Private Family: A Cloak for Dependency-Work Conclusion Bibliography

23 24 28 32 37 45 46

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Relational Vulnerability: Economic, Psychological, Spatial Relational Vulnerability: Its Nature and Temporality The Three Strands of Relational Vulnerability Economic Harms Psychological Harms Spatial Harms Conclusion Bibliography

51 52 53 54 57 64 72 73

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Contents

4 Vulnerability, Law, and the Married Family Law’s Influence on Marriage Marriage, Divorce, and the Restrained State Tracing the Evolution of the Dependency-Worker’s Role A New Era: The Autonomy Turn Conclusion Bibliography

81 82 84 88 94 102 104

5 Vulnerability, Law, and the Unmarried Family Dependency-Work in Cohabiting Relationships: The Legal Framework The Commitment to Autonomy Emotional and Rational Voices: Conflicting Legal Narratives The Private Family’s Influence: Gender and Sentimentality The Male Claimant: Commercialising the Personal Conclusion Bibliography

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6 Theorising Resilience The Origins of Resilience: Overcoming Hardship Neoliberal Interpretations of Resilience: Invulnerability and Personal Responsibility A New Vision of Resilience: The ‘Responsive State’ Towards a Theory of Resilience for Dependency-Workers Temporal Aspects of Resilience Conclusion Bibliography

135 136

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Imagining the Responsive State A Preliminary Question: Distinguishing Between Married and Unmarried Families Response 1: Redistribution of Resources Response 2: State Subsidy for Dependency-Work Response 3: Deferred Community of Property The Need for a Holistic Approach Conclusion Bibliography

108 112 116 119 126 131 132

138 141 144 156 157 159

164 167 171 178 184 185 186

Contents

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Concluding Thoughts The Vulnerability Perspective A Global Crisis and the Need for Urgent Reform Bibliography

Index

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189 189 195 197 199

Table of Cases

Abbott v Abbott [2007] UKPC 53 Adekunle v Ritchie [2007] 2 P&CR DG 20 Burns v Burns [1984] Ch 317 Clutton v Clutton [1991] FCR 265 Cobbe v Yeoman’s Row [2008] UKHL 18 Coombes v Smith [1986] 1 WLR 808 Crabb v Arun District Council [1976] Ch 179 Crossley v Crossley [2007] EWCA Civ 1491 Culliford and another v Thorpe [2018] EWHC 426 Curran v Collins [2013] EWCA Civ 382 Curran v Collins [2015] EWCA Civ 404 Davies and Another v Davies [2016] EWCA Civ 463 Dobson v Griffey [2018] EWHC (Ch) 1117 Eves v Eves [1975] 1 WLR 1338 F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR Foskett v McKeown [2001] 1 AC 102 Gallarotti v Sebastianelli [2012] EWCA Civ 865 Geary v Rankine [2012] EWCA Civ 555 Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 Greasley v Cooke [1980] 3 All ER 710 Hammond v Mitchell [1991] 1 WLR 1127 Hyde v Hyde and Woodmansee (1866) 1 P&D 130

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Table of Cases

Hyman v Hyman [1929] AC 601 James v Thomas [2007] EWCA Civ 1212 Jennings v Rice [2002] EWCA Civ 159 Jones v Kernott [2011] UKSC 53 K v K (Ancillary Relief: Pre-Nuptial Agreement) [2003] 1 FLR 120 Lawrence v Gallagher [2012] EWCA Civ 394 Lloyds Bank v Rosset [1991] 1 AC 107 Martin v Martin [1978] Fam 12 Matthews v Matthews [2013] EWCA Civ 1874 Mesher v Mesher [1980] 1 All ER 126 Miller v Miller;McFarlane v McFarlane [2006] UKHL 24 N v N (Jurisdiction) [1999] 2 FLR 745 Radmacher v Granatino [2010] UKSC 42 RC v JC [2020] EWHC (Fam) 466 Rubin v Dweck [2012] BPIR 854 SA v PA [2014] EWHC 392 Smith v Bottomley [2013] EWCA Civ 953 SS v NS (Spousal Maintenance) [2014] EWHC (Fam) 4183 Stack v Dowden [2007] UKHL 17 Suter v Suter and Jones [1987] Fam 111 Thompson v Hurst [2012] EWCA 1752 Thomson v Humphrey [2009] EWHC 3576 Thorner v Major [2009] UKHL 18 Tinsley v Milligan [1993] 1 WLR 126 V v V (Prenuptial Agreement) [2011] EWHC (Fam) 3230 Wachtel v Wachtel [1973] Fam 72 Waggott v Waggott [2018] EWCA Civ 727 Wayling v Jones [1995] 2 FLR 1029 White v White [1999] Fam 304 White v White [2001] 1 AC 596

Canadian Cases Lac Minerals v Corona [1989] 2 SCR 574 Pettkus v Becker [1980] 2 SCR 834 Rawluk v Rawluk [1990] 1 SCR 70

Table of Cases

Australian Cases Muschinski v Dodds [1985] 160 CLR 583 Baumgartner v Baumgartner [1967] 164 CLR 137 West v Mead [2003] NSWSC 161

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Table of Legislation

England and Wales Care Act 2014 Civil Partnership Act 2004 The Civil Partnership (Opposite Sex) Regulations 2019 Divorce Dissolution and Separation Act 2020 Divorce and Financial Provision Bill 2014-15 Divorce and Financial Provision Bill 2016-17 Divorce and Financial Provision Bill 2017-19 Equality Act 2010 Family Law Act 1996 Legal Aid Sentencing and Punishment of Offenders Act 2012 Marriage Same Sex Couples Act 2013 Matrimonial Causes Act 1973 Matrimonial and Family Proceedings Act 1984 Matrimonial Proceedings and Property Act 1970

Scotland Family Law (Scotland) Act 2006

South Africa Matrimonial Property Act No. 88 of 1984 xvii

1 Introducing Relational Vulnerability

Over the past decade, a new discourse of human vulnerability has emerged in socio-legal and critical studies, providing a novel lens through which to analyse law and state policy. This ‘vulnerability-theory’ is rooted in the notion that, as humans, we all share an inherent vulnerability that is ultimately grounded in our embodied nature. As the theory’s leading proponent, Professor Martha Fineman (2008, p. 9) argues, the human condition is susceptible to “the ever-present possibility of harm and injury from mildly unfortunate to catastrophically devastating events”. As a result of our embodiment, Fineman (2017, p. 134) asserts that we are also “dependent upon, and embedded within, social relationships and institutions throughout the life course”. Being vulnerable, Fineman argues, is a constant and unavoidable state and, try as we might, we can no more escape being vulnerable than we can escape our own bodies. Therefore, the theory does not seek to eliminate vulnerability (because such a thing would be impossible), but instead calls for a more responsive and engaged state, one that will acknowledge the reality of the embodied and embedded human condition and, through its various institutions, provide the resources, or resilience, necessary to reduce the risk of harm, rather than its current practice of stigmatising dependency, regarding it as a failure to attain autonomous personhood (Fineman 2010). It is difficult to do justice in relatively few words to the full impact that this ‘vulnerability-turn’ has had on legal scholarship, both in the UK and globally. The past five Law and Society Association annual meetings have featured numerous paper sessions and roundtable discussions centred around vulnerability. Fineman’s own Vulnerability and the Human Condition Initiative

© The Author(s) 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7_1

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at Emory University, USA, was founded in 2008, and organises symposiums, conferences, and discussions across the world. Thus, it is clear to see the theory’s impact, uniting scholars across a range of socio-legal disciplines through the common thread of recognising vulnerability as a universal condition. This has led to a substantial reinvigoration and reconceptualisation of debates in a range of legal areas, including transgender rights (Dietz and Pearce 2020), disability law (Clough 2017), bioethics (Thomson 2018), and criminal justice (Dehaghani and Newman 2017). This book is an expansion of, and contribution to, the existing scholarship on vulnerability. Using Fineman’s notion of universal vulnerability as a foundation, I build upon it by putting forward a new model of what I term relational vulnerability that I apply in the specific context of English law’s treatment of unpaid work when performed in the context of the private married or unmarried family. In doing so, I also want to develop a more nuanced understanding of universal, embodied vulnerability, emphasising its inherently temporal nature, marked by both unpredictability and inevitability. My approach builds on Fineman’s notion of human relational and institutional embeddedness, exploring how the relational structures in which we are all inevitably situated can expose us to harms rather than providing resilience. The existing universal model of vulnerability has been accused of focusing excessively on vulnerability that is biological in origin, arising from the embodied human condition (see Mackenzie et al. 2014). By contrast, this book’s context-specific theoretical approach distinguishes between vulnerability that occurs as a result of embodiment and is therefore unavoidable, and that arising from other sources, which is often preventable. I argue that it is not just our bodies that expose us to the risk of harm, but that additional disadvantages can also arise as a result of how the state and its institutions, including law, respond to our embodiment and relationality. The setting for the book is the legal regulation of the private family and specifically English law’s response to the various disadvantages that flow from gendered role specialisation during marriage or cohabitation. While there already exists substantial feminist literature on this topic (e.g., Thompson 2015; Barlow 2015; Garland 2015), the vulnerability lens allows me to examine the issues from a novel perspective and to take the debate in a new direction. I argue that the state and law, driven by increasingly neoliberal1 policies and motivations, structures the private family to function as 1 In

this book, I use neoliberalism as a loose term to describe the prevalence of state policies that promote personal responsibility, market freedom, and individual economic self-sufficiency (see Harvey 2007). Neoliberal policies are based on the classic liberal theories of personhood that I discuss throughout the book.

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a mask for the inevitable dependency-work that is necessary to sustain the human life course. This term, which has been employed by a number of feminist scholars (see e.g., Fineman 2000; Kittay 1999), is given a broad definition in this book, encompassing all forms of socially reproductive labour, including (but not limited to) caring for children and adults, providing the support necessary for adults to engage in the workforce, and performing the work necessary to produce and maintain the home as the locus of the private family. Dependency-work’s concealment within the family (where it is predominantly assigned to its female members) allows the state to promote an artificial, disembodied version of personhood, one that permits it to remain restrained and unresponsive to vulnerability. This comes at the direct expense of those who perform the work (termed ‘dependency-workers’ in this book), who are exposed to a range of avoidable harms throughout their lives. While I argue that the relational vulnerability affecting dependencyworkers exposes them to various preventable disadvantages, I also recognise that relational vulnerability is inextricably tied to the embodied ‘ordinary’ vulnerability that affects us all. The relational vulnerability I explore in this book arises because the state wishes to imagine that we are disembodied, atomistic, and invulnerable, and relies on hidden and unpaid labour to uphold this image. Legal and policy reform not only must address the harms currently suffered by dependency-workers but must also acknowledge the embodiment, fragility, and embedded relationality of humanity.

Being Vulnerable: The Inherent Human Condition Discourses of vulnerability have historically been employed when advocating for special protections for identifiable groups thought to possess particular sensibilities, such as ‘the elderly’, or ‘persons with disabilities’ (Formosa 2014). For instance, Goodin (1985) calls for collective societal responsibility for protecting those that are especially vulnerable owing to their dependency on others. Equally, in other fields where a vulnerability discourse has traditionally been employed, including medicine, social psychology, and child protection, terms such as ‘vulnerable patient’ or ‘vulnerable child’ connote some special need or weakness that falls outside the expected norm. By instead emphasising vulnerability as a constant and shared , rather than extraordinary, state of being, Fineman’s universal model moves away from potentially negative connotations of victimhood (see Clough 2017). This demonstrates vulnerability theory’s radical and transformative potential in a range of fields,

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encouraging a fundamental reordering of the state and its institutions, one that has the potential to achieve social justice on a substantially broader scale than the somewhat hollow call for anti-discrimination measures for marginalised ‘vulnerable groups’, which rests on the assumption that the norm is invulnerability (Fineman 2012). Vulnerability theory criticises and challenges the problematic and flawed conceptions of personhood proffered by classical liberal legal and philosophical theories, which underpin modern, increasingly neoliberal, state policies. It argues that these are modelled on a hypothetical autonomous liberal subject that is self-sufficient, rational, and disembodied (Barclay 2000; Grear 2011). In very generalised terms, the liberal legal and political theories that vulnerability theory critiques are based on the assertion that humans possess innate free will and inner moral agency, which the state has a duty to protect. Examples of this include Kant’s (1996) theory of internal moral law, Rawls’ (1971) theory of justice, Raz’s (1986) notion of liberal perfectionism, and Dworkin’s (1988) theory of individual freedom. From a critical feminist perspective, these theories promote a problematic and unrealistic version of personhood that struggles to explain relationships of affection, dependency, and care. Liberal theories of personhood fail to acknowledge that, in intimate and familial unions, people frequently make decisions that do not appear to be in their own interests, motivated or dictated by their relational connections. Liberal theory’s lack of engagement with relationality sometimes depicts these decisions as indicating an absence of rationality or autonomy on the part of the decision maker, for example in the case law governing the doctrine of undue influence in contract law, where dependency on another person can be viewed as evidence of lack of free will (see Auchmuty 2002). Liberal and neoliberal accounts tend to pathologise vulnerability and dependency as weaknesses, symbolic of a failure to attain autonomous personhood (Chandler and Reid 2016). Questions of relationality, affection, and emotion are thought to lie beyond legal and state concern and are instead consigned to an imagined ‘private realm’, into which the state does not interfere (O’Donovan 1985). Vulnerability theorists call for the state to abandon its reliance on liberal versions of personhood, moving towards a “responsive state”, which is one that: Recognises that it and the institutions it brings into being through law are the mean and mechanisms whereby individuals accumulate the resilience or resources that they need to confront the social, material and practical implications of vulnerability (Fineman 2013, p. 17)

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The idea of the responsive state represents a radical departure from the liberal models of law and citizenship that regard state power as potentially harmful to the expression of individual autonomy (see, e.g., Mill 1869). Liberal theories idealise a minimalist or ‘night-watchman’ state, whose role is restricted to upholding individual freedoms but does not seek to interfere further into the lives of its citizens (Nozick 1974). Yet, it is this restraint that has led to substantial societal inequality, with those who are unable to live up to the self-sufficient ideal being blamed for what is in fact an inevitable part of the human condition. While the universal model refutes the idea of varying degrees of vulnerability (in the sense that some individuals or groups are more vulnerable than others), it very clearly recognises that not all individuals experience their inherent embodied vulnerability the same way. This, Fineman (2010) argues, is not due to differences in levels of vulnerability, but rather the degree of resilience (i.e., the ability to withstand the impacts of vulnerability) that an individual possesses. I will return to the concept of resilience in more detail in Chapter 6 but, broadly, the universal thesis conceives of it as encompassing access to a range of resources controlled by the state and its institutions, including material wealth, social networks, as well as environmental assets (Fineman 2013, pp. 22–23). Resilience is inherently relational, with the individual’s experience of the embodied condition being directly influenced by her place within institutional and interpersonal structures (Fineman 2014; Lewis and Thomson 2019).

Expanding the Boundaries of the Universal Model Although the theoretical framework that I develop in this book draws substantially on the universal model of vulnerability discussed above, it also makes a novel contribution to the scholarship by offering an expansion on the theory in its current form. As well as developing a theoretical framework of vulnerability in the specific context of English family law, I also wish to engage with and respond to some of the critiques that other scholars have levelled at the universal model of vulnerability. Thus, in this section, I will outline some of vulnerability theory’s current limitations, which must be addressed to produce a robust model that is useful not only at an abstract level but can also prompt shifts in law and policy. My own position is that the universal model serves as a starting point rather than a complete solution, a foundation for further development and analysis of the different ways that

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vulnerability can exist and be addressed. I believe that much of the critique of the universal model can be addressed while still maintaining a commitment to the fundamental tenets of the theory. The first criticism relates to the scale of the universal model, which potentially affects its workability when applied to specific contexts. The theory’s breadth is deliberate. Fineman explicitly states that she wants to move away from the tendency to structure models of social justice around recognising the rights of narrowly defined identity-based groups and seeking to promote and elevate their position within law and policy using the language of formal legal equality. She argues that the identity model is deficient, primarily because it fails to challenge the underlying assumption that self-sufficient personhood represents the norm (Fineman 2012). Fineman (2008, p. 1) describes her theory as a “post-identity” one, “not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions” (see also Fineman 2020). Nonetheless, other scholars have labelled these aims excessively ambitious. As Valverde has commented: [T]he new language of ‘vulnerability’ has a much more diffuse political audience and a less clear bit on any one element within the state. Does Fineman intend to provide a theory that will help disabled people, children, the elderly, and women to rally around a new, anti-individualist consensus? If so, the ambition is a worthy one, but in the age of micro-polling and fragmented voting groups it is difficult to see how the recognition of ‘vulnerability’ as a central human condition, one on a par with individual freedom, could give rise to legal and political change. (Valverde 2015, p. 19)

I suggest that one limitation here is that the universal model’s emphasis on shared vulnerability does not at first sight appear to be particularly representative of the society in which we live. After all, the gap between the rich and poor is visibly growing, as states adopt increasingly neoliberal policies. Racial, gender, and class inequalities are being brought to the forefront. To then emphasise that we are all equally vulnerable can appear as if the theory is overlooking many of the visible patterns of inequality and denies the privilege enjoyed by some sectors of society. To a large extent, this is addressed through the theory’s conceptual distinction between vulnerability and resilience. Resilience refers to a range of material, social, and environmental resources, access to which impacts on how one’s own vulnerability is experienced. While embodied vulnerability is inherent and universal, resilience is unequally distributed across populations. However, if unequal access to resilience should in fact be the focus for law and policy reform,

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it begs the question of why the theory so emphasises the shared nature of vulnerability. Certainly, the topic of this book—the role played by the private family in law and its disproportionate negative impact on dependencyworkers—requires further exploration of vulnerability in a specific rather than general context. Therefore, while my framework of relational vulnerability maintains a commitment to the central tenets of the universal model by acknowledging that all persons are inherently vulnerable, it also explores the avoidable and context-specific harms affecting dependency-workers within the private family. As I mentioned above, others have critiqued the universal model’s definition of what it means to be vulnerable, which centres predominantly on harm arising from the embodied human condition. As Mackenzie (2014, p. 38) argues, this ignores that “many types of vulnerability are primarily the result not of unavoidable biological processes but of interpersonal and social relationships or economic, legal and political structures”. Thus, the universal model could be considered less useful in contexts where the harm in question cannot be traced (or only relatively tenuously so) to biological processes. To an extent, this critique is not entirely warranted, given Fineman’s clear focus on resilience and the various unequal ways that individuals are embedded within relational and institutional networks, revealing both “differences and dependencies” (Fineman 2014, p. 318). Therefore, she cannot accurately be described as ignoring non-biological harms, particularly those arising from relational structures—it is merely that she labels these as an absence of resilience rather than additional vulnerabilities. Nonetheless, in this book, I choose to describe the disadvantaged position of dependency-workers as an additional or extraordinary vulnerability rather than a mere absence of resilience against embodied harm. My reason for doing so (as I have suggested elsewhere) is that I believe that labelling structural harms purely as an absence of resilience (with the insinuation that they result from state inaction rather than deliberate infliction of harm to further its own goals), instead of theorising them as a specific type of vulnerability affecting certain, but not all, individuals, could have the inadvertent effect of reducing the state’s culpability as a perpetrator of harm (Gordon-Bouvier 2019b). Nonetheless, as I argue in more detail in Chapter 6, in addition to being exposed to additional harms (i.e., relationally vulnerable), the dependency-worker does also lack resilience against her inherent embodied vulnerability, and the state must seek to address this at the same time as eliminating relational vulnerability. As this discussion reveals, much of the divergence between theorists in this context relates to nomenclature, as the issues and problems theorised remain the same ones, whether they are referred to as vulnerability or an absence of

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resilience. It also reveals the extent to which vulnerability and resilience, as theoretical concepts, are fundamentally intertwined. There is maybe a sense among proponents of the universal model that acknowledging multiple sources of vulnerability, including those that predominantly affect identifiable groups, undermines the theory’s central thesis of shared vulnerability. I disagree with this and do not consider the concepts of universal vulnerability and what can be termed “more-thanordinary vulnerability” (Sellman 2005) to be inherently incompatible. The problem with identity-based and formal equality approaches to rights is not so much that they identify specific groups as requiring protections, but rather that they measure equality solely by reference to how closely the vulnerable group can be made to resemble the (invulnerable) norm. Thus, they do nothing to challenge erroneous presumptions of individualism. Referring to identifiable sectors of populations is difficult to avoid when discussing social inequality. Indeed, critics have observed that when applied to specific legal contexts, the universal model itself reverts to group-based language, even if this is labelled an absence of resilience rather than vulnerability. In particular, Kohn (2014, p. 11) has accused Fineman of “[adopting] the very type of targeted group approach to addressing vulnerability that she has vigorously opposed” when applying vulnerability theory to elder law. The argument I develop in this book is that recognition and discussion of the struggles faced by specific groups and populations does not contradict the universal thesis of vulnerability. Indeed, as I outline in more detail in Chapter 3, the additional vulnerabilities and harms to which dependency-workers are exposed arise specifically because the state fails to acknowledge the reality of inherent human vulnerability. Thus, relational vulnerability as a ‘more-than-ordinary’ set of harms is deeply intertwined with ‘ordinary’ or inherent embodied vulnerability and cannot be considered in isolation from it. This leads me on to the final limitation of the theory in its current form, namely that both the concepts of vulnerability and resilience are undertheorised in terms of how they are experienced by, and impact upon, the individual (see Rogers et al. 2012). This is largely deliberate, as Fineman seeks to move away from the scale of the individual, turning the attention to the wider social structures and the actions of the state. Yet, when the universal model is applied in practice, the problems of ignoring individual impact become apparent. Kohn notes that Fineman’s rejection of autonomy as a normative goal of vulnerability theory can yield excessively paternalistic results, with the potential for undermining both individual freedom and human dignity (Kohn 2014, pp. 14–15). The difficulty is that the universal model, in its rejection of individual autonomy or indeed any significant focus

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on the individual’s own perception of her own vulnerability and resilience, does not seek to offer any meaningful alternative way of evaluating different potential state responses to vulnerability. In the elderly adults context, Kohn argues that Fineman’s approach, which overlooks scrutiny of how the older individual herself will experience protective legal measures, “not only has the potential to promote the radical disempowerment of older adults but is also unnecessary to protect them” (Kohn 2014, p. 20). The problem is that, in rejecting autonomy as a normative goal for her theory, Fineman relies on a narrow, highly individualistic definition of the concept (Mackenzie 2014, p. 37). Indeed, the classical accounts of autonomy view it as an integral part of the self, the ability to self-govern and to live according to one’s own internal moral law (Kant 1996). According to this definition, all persons are presumed to be born free and to possess powers of self-determination (Barclay 2000, p. 54). By contrast, feminist theorists have sought to reconceptualise autonomy as consisting of an inevitable relational component. This model argues that “persons are socially embedded and that agents’ identities are formed within the context of social relationships and shaped by a complex of intersecting social determinants, such as race, class, gender and ethnicity” (Mackenzie and Stoljar 2000, p. 4). Thus, autonomy is viewed not as inborn, but as a condition that can only exist if we are treated as autonomous agents by those around us and by the state. As Nedelsky (2011, p. 118) argues, “autonomy is made possible by constructive relationshipsincluding intimate, cultural, institutional- all of which interact”. Rather than the restrained ‘night-watchman’ state preferred by liberal theorists, the relational account sees the state as playing a pivotal role, both in recognising the individual as being autonomous and having the capacity to make choices, and in providing the material conditions necessary for autonomy (Nedelsky 1993; Herring 2014). Thus, Fineman’s reluctance to embrace relational autonomy as a normative goal for her theory represents something of a missed opportunity. As with the remainder of the theory, the problems are perhaps not so evident at an abstract level. However, once placed into context, the universal model struggles to effectively differentiate between different legal and policy options that may be said to address a particular problem. A responsive state must ensure that the various resources that constitute resilience are distributed equitably across populations. To this end, I argue that resilience-promotion, as a state response to vulnerability, must consist of identifiable normative goals, which includes a commitment to relational autonomy. Allocation of material resources on its own is insufficient to achieve resilience. After all,

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the controversial Universal Credit scheme that operates in the UK represents, on its face, state distribution of resources. It is of course completely inadequate and harmful because it actively disempowers recipients, stigmatising and excessively scrutinising them. I am not suggesting that vulnerability theory would endorse Universal Credit, but the point is that the theory in its current form is not always capable of explaining why some methods of resource distribution are clearly preferable to others, and that stems from its rejection of autonomy as a normative goal of resilience. This is an aspect that I directly address by exploring the theoretical and normative foundations of resilience in Chapters 6 and 7.

A Theory of Relational Vulnerability: Core Claims My theoretical framework of relational vulnerability focuses on the harm caused by the socially and legally constructed private family as a means for the state to conceal the embodied and relational reality of vulnerability and dependency and avoid responsibility for it. I argue that the ‘more-thanordinary’ harms that constitute relational vulnerability are direct products of the state’s marginalisation of the essential dependency-work performed under the cloak of the idealised, heterosexual family unit. To fully explore the notion of relational vulnerability, I also seek to deepen existing understandings of inherent embodied vulnerability. In doing so, I rely on three core theoretical claims.

Multifarious Vulnerabilities My first claim is that vulnerability should be understood as multifarious rather than solely resulting from the human condition. I fully agree with Fineman’s argument that we are all exposed to the constant and inescapable risk of harm to our embodied selves and this is a fundamental part of human existence. However, I suggest that some of us are also exposed to harms that are not embodied in nature, and (as I explained above) I believe these to be better theorised as additional vulnerabilities rather than an absence of resilience against inherent vulnerability. As discussed above, my recognition of multifarious vulnerabilities is shared by other theorists, most notably Mackenzie et al.’s (2014) development of a taxonomy of vulnerability. Their model draws distinctions between inherent, situational , and pathogenic vulnerabilities. According to the authors, whereas inherent vulnerability results primarily from inescapable biological processes, situational

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vulnerability occurs when external circumstances, such as war or incarceration, operate to render the individual temporarily vulnerable (Mackenzie et al. 2014, p. 9). Additionally, and more relevant to my approach, they describe pathogenic vulnerability as a subcategory of situational vulnerability resulting from adverse social conditions, such as oppressive interpersonal relationships and unequal institutional structures. Applying this taxonomy, my model of relational vulnerability would fall into the category of a pathogenic vulnerability, given that it arises from the unequal, state-constructed institution of the private family unit. It is worth emphasising here that when discussing unequal relationships, I am less concerned (although not entirely unconcerned) with the individual behaviour of the parties than the ways in which relationships are structured by the state. Therefore, I employ the term relational vulnerability in a somewhat different manner to others who have used it, such as Kabeer’s (2014, p. 1) work on abusive relationships, where she argues that relational vulnerability involves the individual being “embedded in highly asymmetrical social relations and the associated dependencies”. However, she explains that she sees these asymmetries as arising primarily from the intentional and malevolent act of one person against another (Kabeer 2014). By contrast, the relational inequalities to which I refer throughout the book are not framed in terms of ‘bad behaviour’ on the part of either parties. Instead, I move beyond the private and interpersonal, arguing that even the most intimate of relationships are shaped by wider state power and structures.

Vulnerability’s Temporality My second claim is that vulnerability, both the inherent and embodied form to which we are all subject, and the additional relational vulnerability affecting dependency-workers, is inherently infused with questions of time and temporality. These must be rendered visible to fully understand vulnerability’s nature and its effects on the individual subject. The universal model is replete with references to time and its impact on the experience of being vulnerable. I argue that the human life course is characterised by both inevitability and unpredictability. It is a certainty that our bodies will move through the identifiable stages of infancy, childhood, adulthood, and old age. Simultaneously, human life is inherently unpredictable, and intervening events, such as accident, injury or illness, have the power to instantly alter an individual’s expected life trajectory. I also conceive of the relational vulnerability arising from the socially constructed private family, as temporal. The private family is characterised by a series of expected defining events,

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including leaving home, employment, marriage or partnering, childrearing, and eventual retirement. The order and timing of these events is also governed by societal norms, marking a ‘correct’ time at which they should happen (Freeman 2011; Valverde 2015). The temporalities of the biological and socially constructed life courses are deeply intertwined. Embodied vulnerability is not a fixed state, but a fluctuating condition moving through different stages and cycles. For some part of life, many people are ‘temporally powerful’, meaning that, although not entirely self-sufficient, they are at least physically capable of emulating the image of the ideal liberal subject. In this sense, it is perhaps better to view the hypothetical liberal subject not as entirely disembodied, but as possessing a body that is always temporally powerful and does not decline or age. The issue is not that it is impossible to live up to the autonomous ideal, but that this is not an option available to all, and that for those who can demonstrate compliance, it can never be a permanent state, due to the fluctuations of the life course. The nature of the life course means that we are not only reliant on others, but our future selves are also reliant on our present, more temporally powerful selves. At the peak of physical power, individuals can amass the resources necessary to deal both with the inevitable (ageing and decline) and the unpredictable (accident or illness) aspects of the future. A core aspect of relational vulnerability is that this ability to provide for our future selves is made more difficult, often impossible, for those engaged in dependency. Even at the peak of their physical power, dependency-workers’ obligations in the present (which are governed by the socially constructed temporality of the private family) means that they cannot make independent provision for their future selves. This means that relational vulnerability must also be understood as a fluctuating condition. Its existence, while the family is intact, is often concealed behind the structure of the private family. The restrained state is concerned that the family as a unit is economically self-sufficient but is largely unconcerned with how work and resources are divided between its members. It is only if the family unit (which is an increasingly fragile institution) breaks down that the relational vulnerability of dependency-workers comes into public view. At this stage, law can intervene, ostensibly to address issues of relationship-generated disadvantage through the division of available resources. Yet, as I argue in Chapters 4 and 5, this provision is inadequate and, in the case of both the married and cohabiting family, merely seeks to exacerbate relational vulnerability by upholding the image of the autonomous ideal by devaluing dependency-work and ignoring its temporal impact as a problem stored up for the future. While analyses of relationship-generated

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disadvantages are generally confined to the point at which the relationship breaks down, it must be viewed as a lifelong condition. The full impact of performing dependency-work is often not revealed until later in the life course, when the dependency-worker’s own temporal powers have subsided.

Law, Relationality, and the Private Family The third core claim of relational vulnerability theory is that the private family is a social, political, and legal construct that enables the state to conceal the realities of human vulnerability and dependency, allowing it to remain restrained. Although families invariably take numerous forms, they are all judged against an imagined ideal, which remains the married, heterosexual, nuclear unit (see Harding 2015). Family law and policy is invariably made and interpreted with this ideal in mind (Brown 2019). As I discussed above, humans are inherently relational. Indeed, the notion of relational embeddedness is a core tenet of Fineman’s theory and directly impacts on how embodied vulnerability is experienced and perceived (Fineman 2014, 2017). We all exist within wide and complex networks of relationships that consist not only of interpersonal connections such as partners, children, and parents, but also numerous private and state institutions, including employers, health care, and legal systems (Nedelsky 2011; Fineman 2017). This relational network, which is ultimately controlled and shaped by the state’s actions, impacts on how we live with our inherent vulnerability. It can either support us or cause us harm and I argue that the dependencyworker is inevitably situated within a disempowering and often harmful relational network. Liberal theories rely on a conceptual separation between public and private life. The family is presented as a natural and inherent way in which the majority of persons choose to order their lives, existing in separation from the public sphere of state power. However, as Fineman (2004) argues, the family is merely another state institution, albeit one that is labelled as private and self-sufficient. The state delegates responsibility for all elements of caregiving and other dependency-work to the family. Simultaneously, it expects the family to function as an economically autonomous unit, with dependency on the state consistently labelled as a failure (Fineman 2004). This enables the state to limit or even deny responsibility for vulnerability and dependency. Thus, for the restrained state, the family and the gendered ideologies that define and hold it together are crucial. Without it, it would need to respond much more proactively to its citizens and provide them with necessary support throughout the life course.

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Although I discuss various state institutions, my main focus in this book is law’s role in upholding the ideology of the private family and thereby marginalising dependency-workers. Law is a powerful state institution whose actions and proclamations carry considerable authority and symbolic force. Critique can be challenging because law is consistently depicted as logical, unemotional, and unbiased (Fox-O’Mahony 2014). Family law claims to be neutral to issues of gender, sexuality, or preferred family form (see Collier 2009), yet as I show in Chapters 4 and 5, the legal framework governing both the married and unmarried family is replete with references to gendered ideologies. As I argue, while law’s black letter may indeed appear neutral, legal actors always draw on a background tapestry of myths, ideologies, and assumptions about human behaviour when interpreting it. Without acknowledging that it does so, family law constantly reinforces the liberal autonomous ideal.

Chapter Summaries In Chapter 2, I analyse vulnerability’s inherent temporality and the relationship between inherent embodied vulnerability and state-created relational vulnerability. The human condition involves inevitable and unpredictable fluctuations in vulnerability, characterised by periods of power and dependency. By adopting this view of vulnerability, I argue, it is possible to accommodate the view that certain groups are more vulnerable (due to their temporal position), without undermining the core claim that embodied vulnerability is a universal condition. I also consider how human relationality and embeddedness arises as a direct consequence of vulnerability. As Fineman (2017) argues, our embodied nature renders us dependent on others for care and sustenance. Yet, this relationality is ultimately constructed and governed by the state and its various institutions, including law (Nedelsky 2011). This leads on to a critique of the socially constructed heterosexual private family, which ensures adherence to an image of autonomous personhood upon which liberal and neoliberal state policies are based. The family, consisting of various gendered expectations, masks the constant work needed to sustain human life. However, dependency-work’s perceived lack of value means that those who perform it suffer relational vulnerability. In Chapter 3, I develop the concept of relational vulnerability further, arguing that it consists of three intersecting strands of harm: economic, psychological, and spatial. Dependency-workers have a reduced ability to amass economic resources, as time and energy is expended on sustaining

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others within their relational network. They struggle to make provision for their future selves, meaning that they are likely to feel the impact of their inherent embodied vulnerability more strongly in the future (e.g., through having insufficient resources to feed or clothe themselves or to pay for adequate health care). Psychological harm can arise as a result of the dependency-worker’s marginalisation, from being viewed as a second-class citizen. The restrained state’s expectation that the family be self-sufficient means that dependency-workers become “derivatively” (see Fineman 2004) dependent on others, including partners and the state. If the private family breaks down (i.e., through divorce or separation), dependency-workers are often forced to turn, at least partly, to the state for support, which is then labelled as a failure to attain self-sufficiency. Finally, spatial harm refers to the dependency-worker’s potentially precarious relationship to her home. A key part of being embodied and relationally embedded consists of the need for a secure place to live that transcends the merely economic. This is vital for a sense of well-being and belonging. Although the state designates dependencywork to the space of the home (see Williams 2002), dependency-workers’ lack of financial power means that they have a fragile relationship to their homes, with the breakdown of family relationships often involving the loss of the family home, a move to more temporally uncertain accommodation, and a struggle to find lasting security. In Chapters 4 and 5, I seek to apply and contextualise the relational vulnerability framework by focusing on the private family as it is constructed in English law. I argue that the way that law allocates potentially resiliencecreating resources within the family contributes to the devaluation and marginalisation of those who perform dependency-work, exacerbating rather than addressing their relational vulnerability. Chapter 4 examines the married (or civilly partnered) family, particularly the redistributive scheme applicable on divorce. I argue that modern conceptions of marriage as a partnership of equals (seen, e.g., in White v White [2001] 1 AC 596), which established a principle of non-discrimination between homemaker and breadwinner contributions, has done relatively little to truly empower married dependency-workers. Marriage’s temporality has changed from a lifelong institution, which, although oppressive, at least provided a level of certainty in terms of the (typically male) breadwinner’s financial obligations towards the (typically female) homemaker. Instead, modern marriage is increasingly couched in discourses of autonomy, especially in terms of financial obligations. On divorce, law emphasises the importance of ‘self-righting’, an ability to swiftly recover from the economic impacts of marriage. Long-term post-divorce dependence is viewed with

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growing disapproval and accusation of female ‘gold-digging’ (Thompson 2016, 2019; Gordon-Bouvier 2020), and courts are increasingly supportive of contracting out and limiting post-divorce liability through nuptial agreements (see Radmacher v Granatino [2010] UKSC 42). I argue that the legal framework reinforces the state’s expectations that its citizens be autonomous, disembodied, and self-sufficient. While dependencywork is ostensibly viewed as equal to paid work, this is not a genuine equality. Law’s emphasis on self-righting within an ‘appropriate’ period of time after divorce means that those who have performed dependency-work in a marriage are disadvantaged, often for the rest of their lives, even if they receive a ‘fair’ settlement at the point of divorce. While married dependencyworkers may be better protected from economic, emotional, and spatial harms than their unmarried counterparts, substantial inequality remains. In Chapter 5, I apply the vulnerability lens to the unmarried, cohabiting family. Marriage’s position as the dominant form of family life is in decline, with increasing numbers of unmarried families. Yet, while these families are functionally similar to the married family (in terms of their responsibility for dependency-work), English law is infamous for its failure to provide specific legal remedies upon relationship breakdown, forcing cohabitants to rely on confusing and potentially unjust property and trusts law (for critique, see Douglas et al. 2009; Barlow and James 2004). The property law framework fails to adequately value non-financial contributions and displays evidence of gender-bias, often depicting women’s contributions to the relationship as motivated primarily by love and affection (Lawson 1996; Gordon-Bouvier 2019a). I argue that cohabitation is erroneously understood as existing ‘outside the law’, an active choice made by couples to avoid the legal consequences of marriage, which the state should respect by avoiding imposing legal remedies. However, I make the point that the state is never truly absent, no matter how minimally it protects its subjects. By refusing to provide a remedy for those left disadvantaged by performing dependency-work in unmarried relationships, the state is sending a powerful message that it does not value this work or those who perform it. Even more so than in marriage, the state creates substantial imbalance in cohabiting relationships where one party undertakes the bulk of dependency-work. Spatial aspects of relational vulnerability are especially prevalent within cohabiting relationships. The predominantly retrospective search for monetary contributions and agreements means that connections to the home that have been established over time are ignored in a way that is less prevalent in the matrimonial case law. Equally, there is little to no consideration of

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the ‘future self ’ and her needs. Instead, the court’s inquiry is confined to the significance of events that have already taken place. Chapters 6 and 7 examine resilience. I argue that a deeper understanding of resilience and its normative aims is essential in terms of addressing the accusations of paternalism that have been levelled at vulnerability theory, while still maintaining the position that it is the state, not the individual, that is ultimately responsible for resilience. In this chapter, I consider the roots of resilience in social psychology, where it is described as a largely internal process of overcoming and adapting to hardship. Resilience has become a buzzword within neoliberal thought, where it is considered a ‘solution’ to the ‘problem’ of vulnerability. Neoliberal conceptions of resilience consider that the individual is capable of overcoming adversity without assistance from the state. By contrast, vulnerability theory regards resilience as an external set of material assets and other resources that are controlled by the state (Fineman 2010). It rejects the neoliberal notion that the individual is able to make herself resilient. I explain that while I largely agree with the view of resilience as a set of external resources, I nonetheless believe that it possesses an internal element that has hitherto been absent from the leading vulnerability accounts. Internal resilience—the notion of feeling resilient —is necessary to combat the accusations that vulnerability theory is excessively paternalistic. For dependency-workers to become resilient, they need access to resources that reduce or eliminate the economic, psychological, and spatial harm that they currently experience. Thus, resilience must have a normative goal of achieving substantive equality. In addition, any state response should also aim to foster relational (rather than individualistic) autonomy. Finally, in Chapter 7, I apply the above normative framework of resilience to three hypothetical state responses to relational vulnerability, evaluating their efficacy in terms of promoting relational autonomy and substantive equality. The first is redistribution, which is used in many jurisdictions, including England and Wales, as a response to relationship-generated disadvantages. Although redistribution provides flexibility and the potential for individualised justice, I ultimately argue that it fails to make dependencyworkers resilient, due to the fact that it permits the state to remain largely restrained while framing the response as a dispute between private individuals. The second response is state subsidy, where dependency-workers would be paid an income from their work, symbolising the value they provide to the state. Here, I draw on basic income and ‘cash for childcare’ schemes in Scandinavia and Finland, considering how these could be adapted to make the dependency-worker resilient. I argue that there is significant potential for

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such a scheme, especially given its ability to provide resources throughout the life course rather than merely at the point of relationship breakdown. However, as has been observed in countries where state subsidy exists, it risks perpetuating gender inequality by paying women to stay at home rather than supporting them in the paid workforce and prompting an equal division of dependency-work. Finally, I consider a state response based around homeownership, in the form of a modified deferred community of property scheme that would award an enhanced share in the home to dependency-worker. This would address the issue of spatial harm and lack of ontological security that I discussed in Chapter 3. Ultimately, however, I conclude that such a scheme would likely only benefit relatively affluent families who own their own home, which makes it unsuitable as the sole response from the state. I conclude that a holistic response is required, perhaps incorporating elements of all three schemes. Crucially, the responsive state needs to revalue dependency-work. Just as the restrained state expects financial self-sufficiency from its citizens, the imagined responsive state could require some degree of participation in dependency-work as part of citizenship. Realistically, this will require a radical change in policy at various state levels, including social welfare, employment practices, and discourses around gender and caregiving (moving towards a position that views care as a collective, rather than private and gendered, endeavour).

Conclusion As I make clear throughout the book, my aim is not to produce definitive solutions to current problems. Therefore, it is unlikely that even my imagined dependency-valuing responsive state will be able to address all the problems that this book will uncover. Rather, I seek to promote a change in the way that problems are conceived and addressed. To a large extent, the groundwork has been done by Fineman and the many scholars who adopt her model and I am merely following in their footsteps. Yet, I hope that my theoretical framework can provide answers to some of the gaps left by the universal model, as well as paving the way for more nuanced and context-specific vulnerability scholarship that builds upon the compelling and transformative foundation that Fineman has created.

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Bibliography Auchmuty R. (2002). Men Behaving Badly: An Analysis of English Undue Influence Cases. Social & Legal Studies, 1, 257. Barclay L. (2000). Autonomy and the Social Self. In C. Mackenzie & N. Stoljar (Eds.), Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self . Oxford: Oxford University Press. Barlow A. (2015). Solidarity, Autonomy and Equality: Mixed Messages for the Family. Child & Family Law Quarterly, 27 , 223. Barlow, A., & James, G. (2004). Regulating Marriage and Cohabitation in 21st Century Britain. Modern Law Review, 67 (2), 143. Brown, A. (2019). What Is the Family of Law? The Influence of the Nuclear Family. Oxford: Hart. Chandler, D., & Reid, J. (2016). The Neoliberal Subject: Resilience, Adaptation and Vulnerability. Lanham: Rowman & Littlefield. Clough B. (2017). Disability and Vulnerability: Challenging the Capacity/Incapacity Binary. Social Policy & Society, 16(3), 469. Collier R. (2009). Fathers’ Rights, Gender and Welfare: Some Questions for Family Law. Journal of Social Welfare and Family Law, 31(4), 357. Dehaghani, R., & Newman, D. (2017). “We’re Vulnerable Too”: An (Alternative) Analysis of Vulnerability Within English Criminal Legal Aid and Police Custody. Oñati Socio-Legal Series, 7 (6), 1199. Dietz, C., & Pearce, R. (2020). Depathologising Gender: Vulnerability in Trans Health Law. In C. Dietz, M. Travis, & M. Thomson (Eds.), A Jurisprudence of the Body. Basingstoke: Palgrave Macmillan. Douglas, G., Pearce, J., & Woodward, H. (2009). Cohabitants, Property and the Law: A Study of Injustice. Modern Law Review, 72(1), 24. Dworkin, G. (1988). The Theory and Practice of Autonomy. Cambridge: Cambridge University Press. Fineman, M. A. (2000). Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency. American University Journal of Gender, Social Policy & Law, 8, 13. Fineman, M. A. (2004). The Autonomy Myth: A Theory of Dependency. New York: The New Press. Fineman, M. A. (2008). The Vulnerable Subject: Anchoring Equality in the Human Condition. Yale Journal of Law & Feminism, 20 (1), 1. Fineman, M. A. (2010). The Vulnerable Subject and the Responsive State. Emory Law Journal, 60 (2), 251. Fineman, M. A. (2012). Beyond Identities: The Limits of an Anti-Discrimination Approach to Equality. Boston University Law Review, 92, 1713. Fineman, M. A. (2013). Equality, Autonomy and the Vulnerable Subject in Law and Politics. In M. A. Fineman & A. Grear (Eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics. Farnham: Ashgate.

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Fineman, M. A. (2014). Vulnerability, Resilience, and LGBT Youth. Temple Political & Civil Rights Review, 23, 307. Fineman, M. A. (2017). Vulnerability and Inevitable Inequality. Oslo Law Review, 4 (3), 133. Fineman, M. A. (2020). Beyond Equality and Discrimination. SMU Law Review Forum, 73, 51. Formosa, P. (2014). The Role of Vulnerability in Kantian Ethics. In C. Mackenzie, W. Rogers, & S. Dodds (Eds.), Vulnerability: New Essays in Ethics and Feminist Philosophy. Oxford: Oxford University Press. Fox-O’Mahony, L. (2014). Property Outsiders and the Hidden Politics of Doctrinalism. Current Legal Problems, 67 (1), 409. Freeman, E. (2011). Time Binds: Queer Temporalities, Queer Histories. Durham, NC: Duke University Press. Garland, F. (2015). Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006. Edinburgh Law Review, 19 (3), 311. Goodin, R. (1985). Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities. Chicago: University of Chicago Press. Gordon-Bouvier, E. (2019a). Crossing the Boundaries of the Home: A Chronotopical Analysis of the Legal Status of Women’s Domestic Work. International Journal of Law in Context, 15 (4), 479. Gordon-Bouvier, E. (2019b). Relational Vulnerability: The Legal Status of Cohabiting Carers. Feminist Legal Studies, 27 (2), 163. Gordon-Bouvier, E. (2020). The Open Future: Analysing the Temporality of Autonomy in Family Law. Child and Family Law Quarterly, 32(1), 75. Grear, A. (2011). The Vulnerable Living Order: Human Rights and the Environment in a Critical and Philosophical Perspective. Journal of Human Rights and the Environment, 2(1), 23. Harding R. (2015). Parenting after Equality: (Re)Inscribing the Heteronormative Family. In R. Leckey (Ed.), After Legal Equality: Family, Sex, Kinship. Abingdon: Routledge. Harvey, D. (2007). A Brief History of Neoliberalism. New York: Oxford University Press USA. Herring, J. (2014). Relational Autonomy and Family Law. London: Springer. Kabeer, N. (2014). Violence Against Women as ‘Relational’ Vulnerability: Engendering the Sustainable Human Development Agenda. New York: United Nations Development Programme. Kant I. (1996). Kant: The Metaphysics of Morals, M. J. McGregor (Ed.). Cambridge: Cambridge University Press. Kittay, E. F. (1999). Love’s Labor. New York: Routledge. Kohn, N. A. (2014). Vulnerability Theory and the Role of Government. Yale Journal of Law & Feminism, 26 (1), 1. Lawson, A. (1996). The Things We Do for Love: Detrimental Reliance in the Family Home. Legal Studies, 16 (2), 218.

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2 Embodiment, Temporality, and the Private Family

In this chapter, I argue that dependency-workers’ relational vulnerability is a direct result of an excessively restrained state that ignores and masks the reality of the embodied human condition. Instead, the state promotes an artificial illusion of invulnerable personhood, whereby the individual is imagined as always at the peak of physical power and capable of existing without depending on the state or other individuals. This illusion is enabled by the state-constructed private family, the institution that assumes primary responsibility for dependency-work, thus removing its visibility and value from public view. The private family allows the state to remain restrained and unconcerned about unequal distribution of work and resources among its citizens. Within the family, dependency-work remains gendered, tied to the idealised female roles of mother, wife, or daughter, which further reduces its perceived value. I begin the chapter by exploring the notion of inherent embodied vulnerability. I argue that embodied vulnerability is temporal, marked by fluctuations in bodily strength and capability throughout the life course. The biological lifecycle is characterised on the one hand by the inevitability and relentlessness of time’s passage and its attendant impact on the body, and on the other by the unpredictability and unknowability of the future and its potential harms. The duality of vulnerability’s inevitability and unpredictability necessitates that all persons exist within a wide network of relationships, both with other individuals and with the state and its institutions, including the family (Fineman 2017). Rather than arising naturally and organically, this network is governed and shaped by the state, and has the potential to not only empower but also harm the individual (Nedelsky 2011; Leckey 2008). © The Author(s) 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7_2

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I then go on to consider the idealised version of personhood promoted by liberal and neoliberal ideologies: the “autonomous liberal subject” (Fineman 2004, 2008). This is an unrealistic ideal, artificially frozen in time, free of the inevitability and unpredictability characterising the vulnerable human condition. The state stigmatises those who are unable to conform to the ideal, labelling it individual failure and absolving itself of responsibility. The illusion of invulnerable personhood is made possible through the state’s structuring of relations in such a manner as to hide evidence of dependency-work and vulnerability from public view. The construction of the private family with its gendered and sentimentalised roles ensures that the state can absolve itself of responsibility for vulnerability and dependency. Finally, I consider how the illusion of invulnerability is achieved at the dependency-worker’s expense. Drawing on Fineman’s notion of “embeddedness” (Fineman 2017), I argue that dependency-workers become situated within an unsupportive and potentially harmful relational network, whereby the state’s institutions (primarily the private family) provide insufficient support and resilience. Within this discussion, I acknowledge that the private family itself is a fragile institution, increasingly liable to breakdown, following which the dependency-worker’s relational vulnerability is often exacerbated. Importantly, performing dependency-work also prevents an individual from amassing resources that can provide relief against the inevitability and unpredictability of inherent embodied vulnerability. This places the dependencyworker at considerable disadvantage and exposes her to a range of preventable harms.

Embodied Vulnerability: Temporality and Rhythms The physical and material body constitutes human existence, and, in that sense, we are no different from any other living species on Earth. Yet, as I argue in this chapter, within legal and political thought (based on liberal theories of personhood), the human body is so often overlooked, taken for granted, or regarded as a mere vessel for the more important mind—a mind frequently thought capable of transcending the body. The core tenet of vulnerability theory is that the material reality of the vulnerable body must be at the core of state concern. As this book argues, dependency-workers are subjected to preventable harms precisely because the materiality of the body and its inherent limitations and dependencies are overlooked and ignored. In my theoretical centring of the material body, I could potentially be accused

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of promoting a biologically deterministic perspective, or of contradicting the critical and postmodern feminist view that the body is primarily a product of social construction (see, e.g., Butler 1990; Lamble 2009). However, neither accusation would be warranted, in my view. Recognition of the body’s materiality does not in any way preclude recognition that the way that it is understood is socially constructed. Indeed, throughout the book, I expose and critique the harmful gendered norms that constitute the private family— norms that are frequently bolstered by appeals to biological ‘fact’ (which is an example of biological determinism). In particular, this can be seen in the societal and legal depiction of dependency-work as a female vocation and thus devoid of wider social value. Additionally, socially created categories of race, sexuality, and gender-presentation also affect how bodies that deviate from expectation or ideal are viewed by society and experienced by those who inhabit them. In this book, I nonetheless rely on the existence of a ‘presocial’ body that can be analysed in separation from the body as it comes to be understood in social, cultural, and legal discourses. This biological body will continue to exist and to impose various limitations on us, regardless of how we choose to understand it and regardless of our desire or belief that the mind can transcend and overcome the body’s limitations. Acknowledging the vulnerable human condition involves recognising the body’s complete dependency on its environmental surroundings. Humans, like any other living creatures, require constant nourishment, rest, and repair in order to function effectively. The human body is vulnerable because, without a careful equilibrium of various natural conditions, it would very quickly perish. As Grear (2011b, p. 40) argues, “the interrelational structure of our embodied existence firmly locates us as part of the living order, continuously intimate with its lived, pulsating movements”. The body depends on the functioning of the ecosystem surrounding it, with even minor imbalances bringing potentially devastating consequences. In the pursuit of modernity, capital growth, and ‘progress’, the body’s place in, and dependence upon, the natural order is obscured, with humans viewing themselves as independent of, and superior to, the rest of nature and capable of transcending bodily limitations. Sociologists have noted the displacement of the constant rhythms and cycles of the natural body, which have given way to a linear temporality of progress (Adam 1995; Young 1988). This fictional vision of humanity crumbles immediately upon the occurrence of crisis events such as famines caused by crop failures, destruction from flooding, droughts, or fires. A pertinent illustration is that, at the time of writing this, the world finds itself in the grip of the COVID-19 pandemic. This has, in a very short space of time, radically transformed areas of life that

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we previously took for granted and brought our inherent bodily limitations into sharp focus. The virus has provided a stark reminder that capitalist societies governed by neoliberal politics of individualism are inherently fragile, founded on mythical notions of permanent strength and invulnerability that become meaningless in the face of incontrovertible evidence of our universal helplessness.

Temporalising Embodied Vulnerability: Inevitability and Unpredictability I regard embodied universal vulnerability as consisting not only of the material flesh and blood of the human body that is reliant on equilibrium within the natural order, but also of a relationship to time—one where “[i]nstead of containing and controlling time, life succumbs to its rhythms, direction, and forces, to the ever pressing forces of developments, growth and decay” (Grosz 2004, p. 5). As I explore in this section, embodied vulnerability is a temporally fluctuating state, progressing through different stages throughout the biological life course from birth to death. These stages are universal, inevitable, and irreversible. In addition to this inevitability, the human condition is marked by the constant risk and unpredictability, against which humans can never fully protect and insure themselves, of unforeseen accident or injury that forces a change to the individual’s expected life trajectory. Inherent embodied vulnerability consists partly of the fact that all humans at any given time are situated at a certain point of the life course and all are governed by its “single relentless movement forward” (Grosz 2004, p. 6). Despite the desire to harness and govern time (Adam 1998), humankind cannot ultimately in any meaningful sense control the stages and changes that the body moves through before it eventually dies. As modern technology and techniques develop, it is increasingly possible to maintain a pretence of being able to ‘cheat time’ in terms of its impact on the body, through human interventions such as rejuvenation surgeries, artificial reproduction, and lifeprolonging medications (Menzies 2000). Yet, while these measures may give rise to a brief illusion of being able to stop or alter the course of time, they are always limited, ultimately allowing biological reality to catch up. Part of being vulnerable is the fact that this biological ‘march forward’ cannot be stopped or avoided (see Grosz 2004, p. 5). Bodily strength is always a temporary, rather than permanent, state and will ultimately give way to the cycle of decline and decay.

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The extent to which the body is dependent on others fluctuates throughout the life course (see Fineman 2017). Newborns are completely helpless, in need of constant care to survive. The dependency of childhood gradually gives way to the relative self-sufficiency of adulthood, which is marked by an increase in physical bodily strength and control. While this time at peak physical power may last some considerable time, there will come a point after middle adulthood when the body begins a gradual process of decline, until it eventually dies. There is a clear intersection between this cyclical experience of the body’s strength, and the notion of dependency. Fineman argues that vulnerability is conceptually distinct from dependency. The former, she argues, is constant, whereas the latter is “episodic, sporadic and largely developmental in nature” (Fineman 2008, p. 9). On the one hand, as discussed above, all human bodies are dependent, at a basic level, upon sustenance, rest, and ecological equilibrium. However, here, Fineman is referring to dependency in a relational sense, whereby one person is either wholly or partly dependent upon others to meet her basic needs (see also Kittay 1999), a state that indeed is episodic and varies between individuals. In contrast to dependency, embodied vulnerability is constantly present, yet it is simultaneously fluctuating in terms of the body’s movement through the life course. Decline in bodily strength may bring about helplessness, rendering the individual dependent on others to meet her basic needs, but, other than in the case of infancy, it is not inevitable. What is inevitable is that there will be a degree of decline in bodily strength during the later part of life, which will affect how the individual experiences her vulnerability and which may necessitate different treatment and protections to those necessary for somebody situated at an earlier state of the lifecycle. This means that it is simultaneously possible to maintain that all persons are vulnerable but to also explain cogently why children and the elderly may require special measures and protections (even though not all elderly persons will be situated within a direct dependencyrelationship). Far from undermining the thesis of vulnerability’s universality (as Kohn [2014], for instance, has suggested it does), focusing on an identifiable group experience acknowledges that all humans are situated within the same cycle, but that vulnerability is a condition that fluctuates through life and is marked by periods of varying capabilities. At some stages in our lives, we are helpless and utterly dependent on those around us, whereas at other times, we are imbued with physical strength and can endure hardships that those situated in different stages of the life course cannot. Yet, even if we are currently situated at a point in the cycle characterised by physical strength, we cannot escape the fact that this state is temporary and will inevitably be lost. It is this inescapability that constitutes our inherent vulnerability.

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The second temporal tenet of inherent vulnerability consists of the embodied individual’s exposure to risk and unpredictability; what Reith (2004, p. 383) has termed “the state of uncertainty- of not knowing, and therefore being unable to control, the unfolding of the future and the state of the world”. Just as it is impossible to halt the inevitable physical decline brought about by the biological life course, we are also powerless in the face of the risks to the body that the unknown future holds. As Fineman has argued, “[w]e are beings who live with the ever-present possibility that our needs and circumstances will change” (Fineman 2008, p. 12). The presence of risk of harm is a reminder that we cannot escape our bodies and, try as we might, are unable to eliminate the possibility of falling victim to unforeseen future circumstances. We can try to insure against it through various anticipatory and precautionary mechanisms (see Anderson 2010), and through the material resources that can engender resilience against potential future events, but complete elimination of the risk is impossible. The constant presence of potential future harm illustrates another example of the lack of human control over time’s passage. While humans may have gained knowledge of the biological aspects of the life course through understanding and categorising its temporal phases (Grosz 2004), such understanding can never provide absolute certainty. Unforeseen bodily harms in the form of accident and injury have the power to alter the course of the expected trajectory in an instant, cutting the life itself short or rendering even the strongest individual completely helpless and dependent on the care of those around her. Should these unforeseen events occur, they force a reconceptualisation of the individual self and her previously imagined life path. At this point, it is no longer possible, as we too frequently do, to imagine decline and death as far away in a distant future and of no concern in the present, when the body ceases to function or declines at an unexpected moment of life (see Bury 1982).

Embodied Vulnerability and Relationality Feminist scholars have long argued that humans are not merely free-standing, atomistic agents but, rather, are relationally constituted, situated within a “myriad interpersonal and institutional interconnections” (Harding 2017, p. 15). As Nedelsky argues: Each individual is in basic ways constituted by networks of relationships of which they are a part- networks that range from intimate relations with parents, friends, or lovers to relations between student and teacher, welfare recipient

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and caseworker, citizen and state, to being participants in a global economy, migrants in a world of gross economic inequality, inhabitants of a world shaped by global warming. (Nedelsky 2011, p. 19)

Acknowledgement of relationality forms a core component of the universal vulnerability thesis. As Butler (2014) notes, “the body…is defined by the relations that makes its own life and action possible”, and “we cannot understand bodily vulnerability outside this conception of relations”. Similarly, Fineman (2017, p. 134) explains that, “as embodied beings, individual humans find themselves dependent upon, and embedded within, social relationships and institutions throughout the life course” (emphasis added). The numerous relations between humans, and between humans and institutions, are all intrinsically rooted in the embodied vulnerable condition and its inevitability and unpredictability. At periods of inevitable bodily decline and, in the event of unforeseen harm, the vulnerable subject will be particularly dependent upon her network of relationships. Thus, it is vital that this network is supportive and empowering, operating to mitigate harms that may otherwise ensue. It is important to stress that recognition of the intrinsically relational nature of personhood does not mean uncritically accepting all these various relationships (see Harding 2017). An individual’s relational network has the potential to be resilience-enhancing, providing empowerment and protection against the negative aspects of embodied vulnerability. However, as I explore in this book, some relational networks can be disempowering and can even directly harm the individual, producing additional harms over and above those of the human condition. I argue that this is the case for dependencyworkers within the private family due to the state’s devaluation of the work they perform. In distinguishing between the nature and quality of different networks, it is necessary to note that all relationships, no matter how seemingly ‘private’ or intimate, are shaped by various outside influences. This is particularly the case for the private family, which is constructed through numerous laws, policies, and ideologies that define its roles and functions (Nedelsky 2011; Leckey 2008). By contrast, as I explore in more detail below, liberal theoretical accounts depict interpersonal and family relationships as natural, organic and, above all, freely chosen, denying the influence of the state and its institutions on their constitution. Just as the embodied human condition is both inevitable and unpredictable, so too is the constant work required to sustain it. The definition of dependency-work that I employ in this book encompasses all forms of social reproduction and caregiving that occur within the family. It also extends to the wide range of labour involved in producing and maintaining the home

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for the benefit of other family members. Providing care for a person who is unable to do so themselves represents the most time- intensive aspect of dependency-work and it is this facet that can be unpredictable. It cannot be foreseen whether our own body will fall victim to future accident or injury, and nor can it be predicted whether this fate will befall someone in our relational network, potentially requiring us to abandon our own expected life trajectory to provide the necessary care and support. While it might be said in loose terms (albeit that not all parenthood is planned), that becoming a parent involves foreseeable dependency-work with relatively clear temporal boundaries and an identifiable endpoint, decreasing in intensity as children gradually acquire maturity and increased independence, the same is not true for elderly care. The existence of a growing ageing population within a neoliberal society that provides relatively minimal state support means that there is an increased likelihood of an adult child being called upon to perform dependency-work for her elderly parents. Orel et al. (2004, p. 39) have termed elderly care a “disruptive life-event” for adult children or other family members, as it has a substantial impact on the dependency-worker’s ability to make provision for her own old age.

Relationality, Temporality, and Reliance on the Future Self The vulnerable individual’s relational network can provide a protective buffer, or resilience, against potential hardship resulting from embodied vulnerability. While the physical effects of ageing or illness cannot be completely eliminated or avoided, the individual’s experience of these will vary greatly depending on the degree of relational support she has available, both from other individuals, or directly from the state and its institutions. In addition to this, there is a further temporal dimension of human relationality that relates to the extent to which the individual herself can provide some insurance and protection for her future self through amassing resources in the present day that can be used later. As I explored above, our bodily strength fluctuates and follows cycles and patterns throughout the life course. However far away it may appear at times, bodily decline is an inevitability for us all as we age. Accident and illness are not inevitable but remain a constant risk, no matter how prudent we imagine ourselves to be. As a result, as well as relying on others and upon state institutions, our future, less physically powerful selves depend upon the actions and decisions we take in the present day, which will come to affect us in later life. Material resources and assets (in the form of savings, real property, or pensions) can be amassed during times of physical

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strength in order to ensure that future physical deterioration becomes less of a daunting prospect. It ensures a limited degree of certainty in the face of an otherwise unknown future. It is never a guarantee that these resources will remain available to the individual at a later date (or that they will be sufficient to meet her needs), but they nonetheless provide an element of reassurance that is stronger than reliance on unknown future state support. Under the restrained state, the future self is particularly reliant on the actions of the present self because there is no guarantee that the state and its institutions will offer any provision in future periods of decline. In the UK, the welfare state has been in gradual retreat for several decades, with successive government policies leading to the erosion of funding for the National Health Service, withdrawal of public legal funding, and a reduction in pension provision. This has been coupled with a rising retirement age and an increased expectation of self-sufficiency into old age. As I explore in more detail below, neoliberal state policies promote individual responsibility throughout life with seemingly little concern for issues relating to bodily decline or dependency. Therefore, in a neoliberal era, the individual is expected, rather than merely advised, to take actions in the present day that will provide a greater measure of material security for old age or for unforeseen illness or accident. Individual ownership of material resources acquires particular significance because the future state and its institutions are unlikely to provide adequate resilience against declining bodily strength.

The State’s Role in Shaping Relational Networks As I explained above, the relational structures in which we all exist do not arise organically in a state of nature, but rather are shaped and structured by a myriad of external influences, ultimately governed by the state. Here, I employ a broad definition of state, acknowledging that “the domain we call the state is not a thing, system, or subject but a significantly unbounded terrain of powers and techniques, an ensemble of discourses, rules, and practices” (Brown 1992, p. 12). My focus in this book centres particularly on law’s influence on relational networks. Law provides an especially powerful mode of regulation due to the power it claims for itself and the reverence that it is afforded. It lends credence to socially constructed concepts, reinforcing them as true and incapable of challenge (Smart 1989). A core argument in this book is that the way that the state, through law and legal discourses, chooses to structure the private family can lead to some individuals suffering additional hardship that cannot be directly attributed to the embodied human condition and is therefore a more-than-ordinary

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form of vulnerability. I will return below to the concept of relational vulnerability and how it manifests, but before doing so, it is necessary to trace how the body has been defined and construed in liberal political and legal writings, paying attention to how the construction of the body in liberal theories contrasts with the temporally fluctuating, dependent, and fragile body that I have described in this chapter.

Frozen in Time: The Autonomous Liberal Subject In this section, I want to consider how the body currently appears in liberal legal and political discourses that are based around the foundational principle that the individual is autonomous and self-sufficient rather than vulnerable and dependent. Beneath liberal theory and the restrained state’s law and policies lies a fictional vision of humanity—the ideal autonomous liberal subject that was briefly discussed in Chapter 1. This imagined version of personhood influences law and policy as well as how law is interpreted by judges, lawyers, and other legal actors. The autonomous liberal subject has often been accused of being disembodied , of being constituted completely in separation from the body (Ahmed 1995; Fineman 2008). Yet, as I discuss below, the liberal subject’s body does make various appearances within liberal theoretical writings and it cannot therefore be said to be wholly disembodied. Instead, I suggest, the liberal subject’s body is one that is both materially and temporally artificial, bearing little resemblance to the vulnerable body discussed earlier in the chapter. Laws and policies constructed around this artifice serve to stigmatise and marginalise vulnerability, penalising and blaming those who cannot emulate the ideal. The physical body features in various liberal legal writings, demonstrating Grear’s (2011a, p. 42) assertion that “bodies can never completely disappear in law”. Within liberalism, and legal liberalism in particular, the body provides “the physical boundary which defines the rights-bearing subject” (Halewood 1995, p. 1335). One example can be found in Locke’s (1689/1978) famous theory of self-ownership, or “property in the person”, which justifies legal ownership of things on the basis of physical labour performed by the body, which subsequently attaches to the property in question. Property in the subject’s body and in tangible things also comes to mark the limits of intervention, either by other individuals or by the state. As Waldron (1988, p. 183) argues, Locke’s theory defines inviolable personhood “in the first instance by the boundaries of one’s body but extendable to comprehend the objects one has appropriated”. Liberal conceptions of

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embodiment can also be seen in Nozick’s (1974, p. 87) description of a “hyper-plane”, which constitutes the human body as a physical boundary or “moral space” into which others must not intrude. As Harris (1996) argues, bodily integrity is fundamental to the idea of individual autonomy, which is the core tenet of liberal theories of personhood. He explains that: [A]ny society committed to conceptions of universal individual freedom takes it as axiomatic that one of the most fundamental freedoms is what we may call the ‘bodily-use freedom principle’: a person is free to use his body as he pleases and at his say-so, to permit or refuse bodily (and especially sexual) contacts with others. (Harris 1996, p. 62)

However, as I will now discuss, while the body does feature in liberal theories, this is a body that takes a different form, both materially and temporally, from the fragile, constantly in flux, temporally situated vulnerable body that has been described in this chapter.

The Body as Secondary to the Mind Within liberal theory, humans are frequently distinguished from the remainder of the natural order by virtue of their capacity for rational thought, which is believed to render them superior to other living things (see, e.g., Kant 1996). In the desire to demonstrate this, the biological and embodied elements of personhood that illustrate the interconnections between humans and the natural world are often denied, “accompanied by disregard for the well-being of the non-human animals and by an exploitative attitude towards the environment” (Grear 2011b, p. 25). As Halewood argues, “liberal rights theory separates itself from the body, basing its universalism on the equality with which it attaches to all legal subjects as abstract wills or personalities, rather than as particularly instantiated or situated bodies” (Halewood 1995, p. 1336). The mind and the ability to reason and think rationally becomes the primary focus within these theories, whereas the body is treated as a mere vehicle that enables the human subject to exercise autonomy and reason, regarded as “surplus material” (Halewood 1995, p. 1337). The abandonment of the material body within liberal theory is not accidental. Rawls’ (1971) theory of justice, for example, which famously positions the subject behind a ‘veil of ignorance’ specifically requires that the individual’s bodily context and situatedness be absent or concealed. Under liberal accounts, the rational

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mind transcends and is infinitely superior to the body it inhabits, and it can be said that the liberal subject has a body rather than is a body. The liberal body’s temporality is also different from that of the vulnerable body that I have discussed above. While the different stages of human biological development may be given cursory attention, the episodes of dependence that they generate are not of central importance to the liberal understanding of personhood. Instead, the emphasis is on the times during life that the individual possesses physical power and control over her body, and this is regarded as a permanent rather than temporary state. Fineman (2010, p. 265) argues that liberal theory imagines the dependency of infancy and childhood that we all experience as “merely a stage that the liberal subject has long ago transcended or left behind and is, therefore, of no pressing theoretical interests as they develop their grand theoretical explorations in legal and political theory”. Additionally, the inevitable decline in physical strength of old age lies too far in the future to be worthy of serious contemplation, and the liberal subject fancies itself as almost immortal in the sense that it fails to acknowledge the universal nature of the ageing experience, which is othered and treated with disdain (see Segal 2013). This is also linked to the liberal tradition’s emphasis on constant economic productivity, which presumes the possession of an able and physically strong body. Even though ageing is a fate that will befall all of us (unless we die prematurely), it is imagined as a societal burden, even denoting blameworthiness on the part of the elderly for failing to live up to the able-bodied ideal (Hayes 2014). Part of the liberal body’s artificiality can be traced to the theory’s belief that the autonomous individual is in control of time and that the uncertain future can be harnessed and managed through prudent behaviour and rational action (Anderson 2010; Reith 2004). The natural physical decline of old age and the constant risks of injury or disability that form part of the universal human experience become separated from the able-bodied norm in liberal thought. They are too often regarded as things that befall others, who are less fortunate or who have failed to act prudently in order to protect themselves against risk. Here, Giddens’ (1991) idea of “colonising the future” is an apt one, referring to humans’ efforts to overcome their uncertain temporality and maintain the illusion that the future can be controlled after all. It also demonstrates adherence to O’Malley’s (1996) notion of “neoliberal prudentialism”, whereby the rational individual is expected to take control of her own welfare through safeguarding against any future risks, illustrating the various ways that the individual is required to take responsibility in the present day for her dependent future self.

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Within liberal and neoliberal accounts of personhood, visible representations of vulnerability, which deviate from the physically strong and ablebodied norm, are stigmatised and blamed on individual failure to exercise prudence. As Wendell has powerfully argued in the context of disability, bodily ‘misfortunes’ are frequently depicted as events that befall others rather than the responsible self, in an attempt to avoid confronting the realities and limitations of embodiment: The disabled are not only de-valued for their de-valued bodies…., they are constant reminders to the able-bodied of the negative body- of what the ablebodied are trying to avoid, forget and ignore… For example, if someone tells me she is in pain, she reminds me of the existence of pain, the imperfection and fragility of the body, the possibility of my own pain, the inevitability of it. The less willing I am to accept all these, the less I want to know about her pain; if I cannot avoid it in her presence, I will avoid her. I may even blame her for it. I may tell myself that could have avoided it, in order to go on believing that I can avoid it. I want to believe that I am not like her; I cling to the differences. Gradually, I make her ‘other’ because I don’t want to confront my real body, which I fear and cannot accept. (Wendell 1989, p. 113, emphasis in original)

The body’s physicality as imagined in liberal theory differs from the vulnerable one, allowing a bright-line distinction to be made between those who appear to conform to the ideal and those who do not. The liberal perspective persistently regards personhood as a fixed and “bounded” (Nedelsky 1990) state, rather than acknowledging the body’s fluctuations in strength and capacity and its total dependence on its environmental surroundings for sustenance and rejuvenation. As Grear (2011b, p. 28) explains, “[r]eason is…disembodied to such an extent that rationality itself is understood as ‘transcending the structures of bodily experience’”. There are various examples within the theory where visible vulnerability and embodiment is used to ‘other’ and associate with the material those that do not correspond to the autonomous ideal and therefore deny their rationality. Historically, this has often been the case with women and people of colour, whose inferior societal status has sought to be justified through references to their visible embodiment and, by analogy, their irrationality (see Bottomley 2002). The hypothetical liberal body exists separately to, rather than intertwined with, the bodies of others, as Naffine (2003, p. 364) has noted in her remark that law’s body with its clearly demarcated boundaries is one that could never be pregnant. It is also liberal theory’s persistent denial of bodily interconnectedness that has led feminist critics to remark that law’s body is a male one, with

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sexual differences being employed as justifications for denying female agency and autonomy (Bottomley 2002; Duncan 1996). The male body is seen as the neutral default, whereas the female or otherwise non-conforming body becomes its troublesome ‘other’ (Ahmed 1995; Lamble 2009). The liberal body’s boundedness also means that it is considered atomistic and independent, detached from relational networks and removed from the notion of dependency-work. Instead of considering the impact of inherent human interconnectedness, liberal theories focus on the potential risk of encroachment on human boundaries, both from other individuals and from an over-zealous state. Foundational principles of human freedom seem to suppose that the human subject is capable of acting and existing without impacting upon the freedoms of those around her. Nor is liberal theory concerned with the body’s dependence on the constant cycles of rejuvenation, rest and repair that I discussed earlier in the chapter. The liberal body is regarded as always ‘complete’, rather than an entity requiring constant care and nurture, much of it performed by others, in order to be able to present itself as the liberal ideal. The constant work involved in nurturing and sustaining the human body either is not mentioned at all or is considered to lie outside the purview of public concern. As discussed in this section, the body as imagined in liberal thought stands in stark contrast to the vulnerable body and thus bears relatively little resemblance to the life course that we all experience. Yet, despite this, the liberal, frozen in time body forms the foundation for legal and political thought in Western neoliberal societies. Although an invulnerable body is an impossibility, this has become the expectation, with deviations stigmatised and labelled as a failure to attain autonomous personhood. The question is, given the universality of embodied vulnerability, how is this image of constant strength and independence able to subsist? I argue that it is made possible through the state’s structuring of relations in such a way as to conceal the realities of human vulnerability. One of the key ways that this is done is through the social, legal, and political construction of the private family as the institution with chief responsibility for the dependency-work necessary to sustain humanity. The state has a strong vested interest in perpetuating a myth of invulnerability and personal responsibility because such a myth allows it to remain restrained and unconcerned about numerous societal inequalities. Dependency-work becomes hidden within the family, sentimentalised and depicted as a vocation for its female members, with the artificially constructed temporality governing the family obscuring the rhythms of the biological life course. However, this is only made possible due to the work

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carried out behind the family’s external facade. The liberal illusion of invulnerability depends heavily on vital dependency-work remaining unexposed and revealing the reality of universal vulnerability.

The Private Family: A Cloak for Dependency-Work The private family, its gendered roles, and its state-mandated responsibility for dependency-work allows the illusion of autonomy to be maintained, while masking the biological reality of vulnerable personhood. In the liberal theoretical distinction between private and public, the family represents the private realm. It is characterised through discourses of privacy, imagined as a sacred place, a refuge from the stresses of the public sphere, into which the state should not interfere (see Okin 1989; Bartlett 1999). Although there are laws that define and regulate the family, for example those governing marriage, divorce, and parentage (some of which will be considered in more detail in subsequent chapters), the private family is generally presumed in liberal theories to be something that lies beyond legal and political reach. Famously, Rawls’ (1971) theory of justice expressly excludes the family from its reach, presuming it to be a natural phenomenon, based on love and affection and therefore beyond the scope of the principles of justice that he sees governing the public sphere (for critique, see Kearns 1983; Okin 1994). Within a society constituted of clearly demarcated public and private spheres, the family is given the task of carrying out the dependencywork necessary to ensure that its members become and remain economically productive citizens. The restrained state demands that its citizens be autonomous and self-sufficient, an illusion that is only possible through the unpaid and invisible work performed by dependency-workers. Additionally, as Fineman (2004, p. 57) argues, “it is not just the individual but also the family that is cast as ideally independent by society”, illustrating that the family is expected to fulfil its functions largely without assistance from the state. In societal and political discourses, distinctions are frequently drawn between ‘functional’ families, which are invariably those corresponding to the gendered, heterosexual ‘ideal family’ image (see Brown 2019), and less desirable, ‘dysfunctional’ forms, including families headed by single mothers (see Wallbank 1998). The latter are more likely to struggle to conform to expectations of familial self-sufficiency and are more likely to require state-assistance in the form of benefits and subsidies. Thus, they are stigmatised within liberal and neoliberal discourses, with their visible dependency being labelled a sign

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of their failure to attain autonomy. In reality, of course, the married mother is no less dependent than her single counterpart. The difference is merely that her dependency is concealed behind the structures of the family, removing it from state view and concern.

The Role of Law and the Fallacy of Family Privacy Within liberal theory, the existence of a private sphere is considered essential for the self-development and self-determinism that characterises liberal autonomous personhood. The family (and the home that it occupies) is imagined to be a place and space where the individual can be herself, free from state scrutiny (Chapman and Hockey 1999). Yet, as various feminist theorists have remarked, the private realm is a fallacy and is inevitably shaped and governed by external forces, including the state and its institutions (see Fineman 1995; Smart 1989; Nedelsky 2011). While liberal theory maintains that individuals are free to organise their ‘private’ lives as they choose, this book exposes the extent to which the family and the remainder of the private sphere are shaped by the state and its institutions. My predominant focus is how state power is exercised through law—the relations and truths that it creates through its perpetuation of the idealised private family and its designation of dependency-work as a private, sentimental, and, above all, gendered, endeavour. Law, as a state institution, has considerable force in terms of governing the behaviour of its subjects, creating power structures, even within supposedly private relationships. As Berkovitz has remarked: Law embodies and expresses specific social ideologies through its assumptions about society and its various members. At the same time, law also plays an active role. Through its discourses it reproduces and constitutes both the societal subjects and their interrelations. (Berkovitch 1997, p. 607)

Rather than being neutral, English family law is based on a dominant conception of the ideal family and its gendered roles, an aspect to which I will return in Chapters 4 and 5. As Gordon (1988, p. 15) argues, legal discourses “help us make sense of the world…fabricate what we interpret as reality. They construct roles for us…and tell us how to behave in those roles”. The legal framework governing the family consistently reinforces dependency-work as being inferior to economic work, which contributes to dependency-workers’ relational vulnerability.

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Exposing and challenging the power structures that law creates is a difficult task, complicated by the fact that law maintains a thick veneer of impartiality, insisting that it treats all its subjects equally. It is true that law’s ‘black letter’ strives to be neutral, with legislation usually avoiding unnecessary references to age, sex, race, or socio-economic background. However, law is inevitably situated within a substantially broader context, which must be accounted for. The black letter falls to be interpreted by judges and other legal professionals, who inevitably draw on a substantial background tapestry of ideologies, beliefs, and assumptions about society and human behaviour when doing so. Due to the reverence and authority afforded to law, judges possess a unique ability to construct ‘truth’ and to lend legitimacy to certain viewpoints, while simultaneously discrediting and silencing others (see Davies 2013). As Smart (1989, p. 11) argues, “law exercises its power not simply in its material effects (judgments) but also in its ability to disqualify other knowledges and experiences”. However, this power is a subtle one that is difficult to interrogate and challenge. Indeed, any attempt to expose ideologies, assumptions, and biases in the way law is interpreted is likely to be viewed as a direct attack upon its legitimacy. As Rackley has argued: The merest glimmer of recognition that judges may be political actors with substantial power and opportunity to enact their personal political preferences surely threatens to render unstable the whole edifice of law, introducing unsavoury elements of arbitrariness and partiality into a system which rests on its distance from such human/system failings. (Rackley 2002, p. 616)

Thus, for law’s integrity, as it is imagined within liberal legal theories, to remain intact, it is necessary to mask or blur the subjective and fluctuating background against which judicial decisions are made. As a result, biases and ideologies that are continually perpetuated by law are imbued with a substantial degree of authority.

The Family’s Gendered Roles The private family is governed by a gendered ideology that assigns responsibility for dependency-work primarily to women. This ideology is also reinforced and legitimised within legal discourses. Thus, there are different expectations placed on men and women as part of their family roles, with the former being associated with the public sphere and the latter with the private realm (see Gordon-Bouvier 2019a). This remains the case even in the modern era of free choice and proclaimed equality between the sexes. It is notable that,

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while women’s participation in paid economic work has increased substantially over the past fifty years, there has been no corresponding seismic shift within the home. Across the globe, the distribution of caregiving and housework remains stubbornly gendered (see, e.g., Mundlak and Shamir 2008; Sepúlveda Carmona and Donald 2014; Chopra and Sweetman 2014). Within this, there also exist important classed and racialised intersections of inequality, with women of colour and those from lower socio-economic groups bearing a heavier burden and lacking the resources to ‘buy freedom’ in the form of delegating dependency-work to less privileged women in order to take a more active part in the workplace (see, e.g., Hondagneu-Sotelo 2007). However, even taking into account racialised and classed aspects, women of all backgrounds perform more dependency-work in the home than men do. Historically, dominant discourses have relied on biological essentialism to justify the distinct roles and women’s supposed affinity for dependency-work. Women’s biological reproductive capacities label them as natural caregivers, thought, by virtue of their embodiment, to possess the necessary qualities and temperament to carry out this work (see Tronto 1987, p. 645). Women’s identities remain bound up in their relational roles within the family, being judged according to societal standards set for the ideal wife, mother, or daughter. The appeal to biological essentialism also serves to reinforce the perceived liberal distinction between the body and the mind. Because women are associated with caregiving within the private sphere, together with their othered, less bounded bodies, it is seemingly ‘proven’ that they do not possess the same capacity for rational thought that men do. This argument was used to restrict women’s access to the public and political realm, unable to vote or to own property in their own names (see, e.g., Auchmuty 2011; GordonBouvier 2019a). The female psyche was considered inherently unsuited to public endeavours and would take her away from her true vocation in the home as a caregiver and mother, with detrimental consequences for society (Roberts 1997, p. 55). Like the autonomy-based illusion of invulnerable personhood that characterises the public sphere, the gendered construction of care and dependencywork is difficult to challenge. It is ingrained in the social and legal fabric to such an extent that it is accepted as a natural phenomenon. The construction of dependency-work as a feminine virtue reflects what Fudge (2005, p. 265) has termed a “gender contract”, comprising “a set of normative understandings, practices and policies about the appropriate roles and expectations of, and rewards for men and women that is institutionalised in sites like families, firms, schools, state policies and the market”. Under the gender contract, women are expected to perform dependency-work as part of their relational

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role and, by consequence, it cannot have any value beyond the private family context (see also Pateman 1988). Within the family context, individuals are “moralized” (Friedman 1987, p. 90) from a young age and encouraged to develop conduct and characteristics that are typically ‘male’ or ‘female’. Dependency-work is socially reproductive. It sustains people but, equally importantly, it sustains and reproduces ideologies and myths that serve dominant interests. Women are taught from infancy that they are (or should be) natural caregivers and, throughout their lives, they are defined by their relational roles in a manner that men are not. Women who perform childcare in the home are also socialising the next generation of women to become dependency-workers and to take over responsibility for sustaining society. This indirect socialisation is necessary for society to continue to reap the benefits of women’s unpaid work. The state therefore benefits greatly from women’s dependency-work being presented as a natural phenomenon, preventing excessive probing as to who ultimately benefits from its unequal distribution. Even where dependency-work is performed in a professional setting (which lies largely outside the scope of this book), women are overrepresented in the ‘hands-on’ jobs such as home-carer, nurse, nursery-nurse, and midwife. These jobs are also traditionally associated with women, meaning that male performance is often perceived as out of the ordinary, deterring men from pursuing them (see Loughrey 2008). Professional caring roles that are traditionally associated with men tend to be of a higher social status and more distant from the embodied experience of caring for another, such as doctor, head teacher, or surgeon.

Chrononormativity: The Temporal Arrangement of the Private Family The biological temporality of the embodied human condition intersects with the socially constructed and highly gendered temporality that forms the idealised, “chrononormative” (Freeman 2011) life course that defines the family and is upheld as the ‘correct’ way of ordering private life (Freeman 2011; Grabham 2014). The chrononormative life course sets the expectations of certain key events that are considered life-defining, as well as dictating the ideal time or restricting the time frame in which these should be achieved. Examples of life events include leaving home, employment, partnering (ideally heterosexual and ideally in the form of marriage), parenthood, and retirement. Not undertaking these or undertaking them at the ‘wrong’

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time is stigmatised and viewed as a deviation from the norm. The chrononormative life course is gendered in that it imposes different expectations for men and women, meaning that their temporal experiences of life will not be the same, even if their biological vulnerability is shared. While this idealised life course is ultimately a construct, it interacts with and draws upon the biological lifecycle as a means of positing itself as a natural and ideal way of ordering life. For instance, the inevitable dependency of infants on their primary caregivers, which forms a part of the biological life course, is seized upon as setting standards of behaviour for the “ideal mother” (McGlynn 2000; Fineman 2004). The gendered roles ascribed by the private family ideology; those of mother, wife, daughter, or daughter-in-law are temporally loaded in a way that male roles are not. The ‘good mother’ or ‘good wife’ is expected to sacrifice her time to dependency-work, her worth being measured by the extent of her physical presence in the home. Whereas men are able to demonstrate caring sentiment without significant corresponding temporal sacrifice—what Fisher and Tronto refer to as “caring about ” rather than “caring for ” (Fisher and Tronto 1990, emphasis added)—women who work (and enjoy working) outside the home are often labelled as falling short of the ideal (see Gorman and Fritzsche 2002). The temporal expectations of motherhood are given further force by references to biological notions of child development, reinforcing the narrative that only parents (and predominantly mothers) can give a child the care necessary for him or her to thrive and that maternal presence in the home is vital for development. In this way, the image of the ideal mother becomes elevated to the status of an irrefutable truth rather than a social construct that directly benefits the restrained state. I refer to the gendered nature of dependency-work throughout this book and use the female pronoun to refer to the dependency-worker. By this, I do not mean to suggest that all dependency-workers are female, nor that relational vulnerability is something that can only affect women. Rather, my point is that dependency-work itself is gendered within the discourses that govern and construct it. This also operates to prevent men from undertaking this work in significant numbers, thus significantly preventing equality in this area. However, research that has been conducted on men who do undertake dependency-work suggests that their experiences differ from their female counterparts and they do not face the same obstacles. In particular, it has been found that men, even when primary caregivers, perform fewer hours of dependency-work and receive more social support in carrying out their work in comparison with women (Pinquart and Sörensen 2006; Yee and Schulz 2000). The research also suggests that men who are dependency-workers

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experience a lower degree of physical and psychological stress from that work than women (Penning and Wu 2015). Thus, dependency-work and its impacts cannot be analysed without reference to its gendered nature. I return to this point in Chapters 4 and 5, discussing the distinctions that judges make between male and female dependency-workers when determining property rights following relationship breakdown.

Relational Vulnerability As explored above, the promotion of the idealised private family represents one of the chief ways that the state structures and governs relations between its citizens. The family permits the artificial image of the liberal subject to appear a reality to the outside world by masking the realities of the inherently vulnerable human condition within its folds. However, this illusion comes at a considerable cost. The private family, as the institution with primary responsibility for dependency-work, exposes those who perform this work to various avoidable harms and hardships. I employ the umbrella term relational vulnerability to refer to these harms. I argue that the harms that constitute relational vulnerability are state-created and avoidable rather than inevitable. They arise when the dependency-worker is situated within a harmful network of relationships that expose her to harm rather than provide her with support and resilience. However, inherent biological vulnerability and ‘more-thanordinary’ relational vulnerability are very closely intertwined. It is the reality of the former (and the state’s desire to conceal it) that causes the latter to occur. I will explore the various components of relational vulnerability in further detail in Chapter 3. My aim in this section is to consider how it arises and its intersection with inherent embodied vulnerability. As argued above, the private family’s temporality is constructed so as to uphold the autonomous ideal of personhood, whereby inevitable dependencies arising from the biological life course are privatised and removed from the province of state concern. Thus, it masks the rhythms of the biological life course, allowing the frozen in time image of personhood to be perpetuated, whereby infancy has been left behind and old age lies in a distant future, as well as the possibility of unforeseen harm being capable of being avoided by taking prudent action. Dependency-workers are sacrificed in order for the unrealistic image of individualistic autonomy to survive. Dependency-work is essential in order to sustain and regenerate the population but work that is performed in the designated private sphere of the home reduces the state’s liability to fund and

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support it. By emphasising the private nature of dependency-work, the state reinforces a rhetoric that the work is freely chosen by those who perform it and that the state should not interfere in private life. Additionally, it emphasises the notion that dependency-work is devoid of any value outside the private family context. Its depiction as sentimental, akin to a personality-trait or an essential characteristic of female relational roles, allows for the myth that ‘love is all you need’ to perform dependency-work (Gordon-Bouvier 2019b), without regard for the dependency-worker’s “derivative dependency”, referring to the material resources upon which she depends to carry out her work (Fineman 2004). The privatisation of dependency-work and the lack of state support inevitably leads to patterns of partial or total dependency by the dependency-worker on her (usually) male partner, or on the state. The labour performed by the dependency-worker ensures that the dependency of those in her immediate relational network does not become the concern of the state, providing what Fineman (2004) has described as a public subsidy for the state. Yet, in performing her work, the dependencyworker herself cannot conform to the expectation of self-reliance, whereby the individual is expected to make provision for future periods of bodily decline, whether as a result of the life course or an unforeseen accident or illness. Thus, the dependency-worker’s own relational network is weakened as a direct result of the support she provides to others. The family’s temporal constitution means that certain roles within it demand a sacrifice of time that could otherwise be spent developing a career. This is coupled with the assumption in the workplace that the ideal or typical worker is an individual who is unrestrained by caring obligations (Smith 2014). Thus, the ‘good motherhood’ that is perpetuated in various ways entails necessary time out of the workplace, reducing the ability to make provision for the future. Furthermore, as I will explore in greater detail in Chapter 4, the legal married or civilly partnered family is becoming increasingly temporally uncertain, as it moves away from its history of lifelong obligations towards a more autonomy-based equal partnership (albeit that the roles that it continues to proscribe are not equal in value in the eyes of the state) that can be terminated at will and with limited financial consequences. The unmarried family, discussed in Chapter 5, provides even less in the way of financial security on relationship breakdown. Therefore, the dependency-worker is placed in an increasingly precarious position by the legal framework, where her sources of future relational support are uncertain or unknown.

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Conclusion In this chapter, I have explored the temporality of the embodied biological vulnerability to which we are all subject. I have drawn on various researches on the biology of the human life course to show the distinction between biological reality of the human condition and the sanitised and frozen in time version of personhood that is espoused by liberal theories and perpetuated by the state. Human vulnerability is inherently temporal, consisting of the human inability to control the passage of time and the uncertainties of the future. The liberal state needs to mask the temporal human condition, for its reality would threaten to interrupt the logic and rationality of its view of autonomous personhood. It would also expose the state’s responsibility towards its inherently vulnerable citizens. The state is able to uphold the ideal of autonomous personhood through delegating responsibility for dependency-work to the ‘private family’, which consists of gendered norms and expectations, each with their own temporal dimensions. While liberal theories depict the family as a sacred realm, lying beyond the state’s reach, it represents a powerful construct that allows the state to remain restrained and unconcerned about issues of vulnerability and dependency. The family allows the ideal of liberal personhood to be upheld by concealing, gendering, and sentimentalising dependency-work. I have also provided an introduction to the concept of relational vulnerability that will form the remainder of this book, predominantly exploring its interrelationship with embodied vulnerability. As I have stressed, inherent vulnerability and relational vulnerability are distinct concepts, albeit inextricably bound up with one another. The harm that the dependency-worker faces is extraordinary and not merely referable to that arising as a result of her embodiment. Relational vulnerability is the direct consequence of the actions of the restrained state—actions that it takes to avoid fulfilling its obligations to its citizens. In Chapter 3, I will build on the discussion in this chapter through a more detailed exploration of the nature of the harms that constitute relational vulnerability and the different ways that they impact on dependency-workers. In doing so, I will also employ the temporal lens that has been introduced in this chapter. I will argue that relational vulnerability, like inherent embodied vulnerability, is a temporal concept that fluctuates throughout the dependency-worker’s life course, intersecting with the various stages of strength and dependency that constitute the human condition.

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3 Relational Vulnerability: Economic, Psychological, Spatial

In Chapter 2, I outlined my interpretation of inherent, embodied vulnerability as a temporal condition, characterised by the inevitability and irreversibility of the biological life course, coupled with the ever-present and unavoidable risk of bodily harm. As I explained, the temporality of inherent vulnerability is juxtaposed with the artificial state-imposed temporality of the imagined invulnerable, autonomous subject, who is depicted as controlling, rather than controlled by, time. The illusion of the autonomous liberal subject is upheld by the socially constructed private family and the gendered roles that comprise it. The private family is given responsibility for dependencywork, rendering the latter almost entirely private and devoid of any economic value. Through the private family, the realities of inherent vulnerability are concealed, allowing the invulnerability myth to continue. It is this process of concealing vulnerability and dependency that gives rise to a secondary, ‘morethan-ordinary’ relational vulnerability that impacts dependency-workers. In this chapter, I explore the various ways that relational vulnerability affects the dependency-worker, not just in the short term, but over the course of her life. Drawing on research on the various disadvantages faced by dependency-workers from a range of disciplines, including sociology, economics, housing studies, psychology, and critical geography, I identify three groups or ‘strands’ to relational vulnerability—economic, psychological, and spatial. In analysing these, I focus on how relational vulnerability intersects and interacts with the temporality of the biological life course discussed in Chapter 2. As I argue, performing dependency-work, even for a relatively short period, can have significant long-term consequences and some

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aspects of it may not fully manifest until the dependency-worker herself is experiencing the inevitable bodily decline of old age. Additionally, whereas relational vulnerability is inextricably linked to inherent vulnerability (the former arising due to the state’s desire to conceal the latter), it is important to stress the qualitative difference between the two. Inherent vulnerability is a descriptor of the inevitable human condition, and is, arguably, “ambivalent” (Gilson 2011), in that it is neither wholly positive nor wholly negative in nature. By contrast, I argue that relational vulnerability occurs due to actions taken by the state and is therefore not inevitable. It is entirely negative in nature, being a form of what Mackenzie et al. (2014) define as “pathogenic vulnerability”, arising from unequal relational structures. For this reason, relational vulnerability, unlike inherent vulnerability, is capable of elimination, or at least significant reduction, through state action and reform.

Relational Vulnerability: Its Nature and Temporality Within family law scholarship, much of the discourse and analysis around the relationship-generated disadvantage experienced by those who perform caregiving and other dependency-work have tended to centre on the impacts of family breakdown rather than intra-familial inequalities in a more general sense (see, e.g., Parkinson 2003; Douglas 2018). This is understandable. After all, it is only if relationships between adults in the family break down that law even attempts to attribute any form of value to dependency-work that has taken place during the relationship (Barlow 2007). Prior to separation, dependency-work performed within a conjugal relationship is viewed as belonging to the private realm and lying beyond the scope of legal attention. However, as I stress in this chapter, law’s focus on divorce and separation does not address the full extent of disadvantages brought about by taking on prescribed and gendered family roles. While it is true that family breakdown tends to bring existing intra-family inequalities to the forefront, pushing them into public view and making them the concern of law and other state institutions, relational vulnerability can also arise in the ‘intact’ family. Additionally, as relational vulnerability interacts with the temporal shifts of the life course, the full extent of relational vulnerability may lie dormant until such time that the dependency-worker herself experiences episodes of inevitable or unexpected bodily decline. Thus, my analysis emphasises the

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relational vulnerability’s temporal nature, as a fluctuating and potentially life-long condition. Nonetheless, relationship breakdown (whether through divorce or separation) forms a core part of my analysis of relational harms in this chapter, as it has the potential to exacerbate existing relational vulnerabilities, cementing inequalities and bringing them to public attention. Relationship breakdown plays a pivotal role in relational vulnerability because, as Fineman (1995) has argued, the private family in Western societies continues to be defined around marriage or marriage-like relationships. Although legal reforms over the years have incorporated other relationships within legal and societal definitions of family, including civil partnership and same-sex marriage, these are only accepted on the basis of demonstrating similarity to the heterosexual, married family (Bendall 2016; Brown 2019). The continuing centrality of conjugality in an era of autonomy and individualism makes the family a temporally fragile institution rather than one that can be depended upon for security throughout life. Access to “free exit” from conjugal unions (Green 1998), often with minimal financial consequences (Gordon-Bouvier 2020), has become a central feature of the restrained state’s respect for autonomy. Thus, family breakdown can have a substantial exacerbating effect on pre-existing inequalities within the couple relationship.

The Three Strands of Relational Vulnerability The three strands to relational vulnerability—economic, psychological, and spatial—are intersecting. I do not suggest that one is more important than the others, although economic harm is inevitably the easiest one to quantify and therefore the aspect that has received the most attention in the literature on relationship-generated disadvantage. My division of relational vulnerability into three categories is an attempt to draw together existing research on the various disadvantages faced by dependency-workers. Given this book’s theoretical focus, I am not seeking to make novel empirical claims in this section, nor to generalise or claim that the observations here apply to every relationship. However, this is an area that will undoubtedly benefit from future empirical socio-legal research aimed at understanding how relational vulnerability’s different strands are experienced by those affected.

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Economic Harms Dependency-work demands time, which must be sacrificed from time that could otherwise be spent advancing a career. Dependency-workers are less likely to be full-time workers than those who do not have similar caring obligations. Most of the data on the impacts of dependency-work on careers exist in relation to parenthood, where women continue to be significantly disadvantaged compared to men due to them taking on a greater share of childcare labour. This has been described as the “motherhood penalty” (Gash 2009; Viitanen 2014), but it is important to stress that economic disadvantages also occur in respect of other types of dependency-work, including caring for elderly parents (see, e.g., Bauer and Sousa-Poza 2015). There has been a noticeable demographic shift since the middle of the twentieth century, meaning that an increasing number of women with dependencywork obligations are employed outside the home. However, the terms on which they are employed are often different to those of men or women without similar responsibilities. Dependency-workers face serious obstacles to career-progression with an impact on wages and promotion-prospects (Joshi 1987; Hoskyns and Rai 2007). As a result, they have an increased probability of working in lower-status and lower-paid jobs (Abendroth et al. 2014). They are also more likely to be employed part-time or on precarious contracts that may promise ‘flexibility’ but lack the longer-term security that is offered by full-time employment (Grimshaw and Rubery 2015; Harkness 2016). Despite the popularity of employment discourses that promote flexibility and equality in the workplace (see Grabham 2014), the imagined ‘ideal worker’ (around whom employment policies are constructed and law is interpreted) continues to be someone free of caregiving obligations and whose working life is not interrupted by dependency-work (Smith 2014; Blair-Loy et al. 2015). The prevalence of the ideal worker model and its incompatibility with dependency-work encourages role specialisation in order to ensure that the family maintains its dual function of economic autonomy and social reproduction. It is not usually cost-efficient for both partners to significantly reduce their paid work obligations, meaning that one career tends to be sacrificed for the other to continue. Neoliberal discourse tends to paint role specialisation within the private family as a freely undertaken choice made by both parties to an intimate relationship and therefore not an issue that the state should seek to address (Fineman 2004). The reasoning behind this is that the individual should bear the consequences of free choices, rather than looking to the state to compensate for their effects. However, such logic is

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overly simplistic and ignores the influence of the numerous constraints that govern the ‘choice’ to become a dependency-worker (see Harding 2017). Despite recent state attempts to couch dependency-work in gender-neutral terms (e.g. by employing the term ‘parental leave’ rather than ‘maternity leave’), this has had relatively little impact on its gendered distribution. Shared Parental Leave was introduced in 2015 under the Shared Parental Leave Regulations 2014 (SI 2014/3050) and allows time ordinarily allocated to maternity leave to be split between two parents. However, take-up is incredibly low, with fewer than 2% of families making use of the provisions (Birkett and Forbes 2018). A range of factors may influence men’s failure to take advantage of leave provisions. Research shows that, while women are prejudiced by the motherhood penalty, men who do take up full parental leave entitlement suffer disproportionate discrimination by employers, who perceive it as a lack of commitment, as well as being inconsistent with gendered expectations (Rudman and Mescher 2013; Chung 2018). The low rate of pay from shared parental leave also means that it is not a viable option for many families, especially where the male partner is the higher earner (see Atkinson 2017). Thus, while the state may present shared parental leave as an option for all, social and financial factors operate to push families towards a default female dependency-worker set-up. The state’s devaluation and privatisation of dependency-work have extensive and long-lasting negative effects on those who perform the work. Much of this is concealed by the existence of the private family and policies of nonintervention, which hide inequalities from public view. While the state is relatively unconcerned by dependency-workers’ economic hardship for such time that the relationship remains intact, research has illustrated the negative effects of economic dependency and of having a reduced financial status within the family. There are relatively few studies that deal with intra-familial inequalities, with a tendency to treat the family as a single unit for research purposes (Bennett 2013). This partly relates to the difficulty of studying such phenomena, where “so much economic behaviour takes place (literally) behind closed doors” (Burgoyne et al. 2006). However, it no doubt also reflects the liberal principle against excessive intervention or scrutiny into the private realm. Within liberal discourse, the family is typically imagined in romanticised terms, as an egalitarian and altruistic unit, characterised by interdependency rather than dependency, where resources are shared between its members in a manner that benefits all (Wong 2007; Sen 1997). The rhetoric of interdependence and egalitarian sharing masks many of the negative aspects brought about by economic dependence in the family. Dependency-work’s impact on paid work means that a degree of economic

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reliance on a partner or the state (“derivative dependency” [Fineman 2004, p. 35]) is inevitable, even if the dependency-worker is also employed outside the home. While the state presumes that resources are pooled within the family unit, it does not offer effective enforcement mechanisms if economically stronger partners fail to share assets. As a result, material and financial resources may not be equally available to all family members, leading to the risk of ‘hidden poverty’, where the family unit itself appears economically selfsufficient, but assets are unequally distributed between members. Economic research suggests that, where such intra-household inequalities occur, women are disproportionately the victims (Daly and Rake 2003), with evidence suggesting that women have, on average, less access to spending money than men and may even spend less on food for themselves than other members of the household (Cantillon 2013). Of course, this will vary significantly from household to household, depending on how finances are organised, and I am not suggesting it is experienced uniformly. However, dependency-workers’ on average reduced economic status increases the likelihood of them suffering hidden poverty. Relationship breakdown undoubtedly exacerbates existing financial inequalities, often shifting dependency on a partner to at least partial reliance on welfare benefits. It is well documented that women fare worse than men if their married or cohabiting relationship breaks down (Dewilde 2009; Andreß and Hummelsheim 2009). Fisher and Low’s (2015) research suggests that women’s financial position post-separation tends to worsen, whereas men’s often improves, especially when analysed over the longer term rather than in the immediate aftermath of family breakdown. Fisher and Low’s research also suggested women’s best hope of substantially improving their financial prospects after divorce was to remarry or re-partner. For those who do not repartner, relationship breakdown increases the likelihood of reliance on welfare benefits (Fisher and Low 2016). This can lead to public visibility of the previously hidden economic inequalities, with the ensuing stigma of failing to live up to the ideal of autonomous personhood. As I argued in Chapter 2, the neoliberal state expects individuals to amass resources that are to be used for provision for their future, more fragile, selves. The dependency-worker is prevented from doing this. One of the most significant ways that dependency-workers are financially disadvantaged is in terms of their ability to build up pension provision. Private pension assets are becoming increasingly vital as the welfare state shrinks and state provision is no longer sufficient to ensure an adequate standard of living in old age. The pressure on the individual to make adequate provision is therefore intensified. As Foster and Heneghan (2018, p. 347) have argued, we are witnessing “the

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financialisation of welfare, each person their own financial adviser, setting aside resources that move with them from job to job with only a basic safety net from the state”. The gendered pension inequality that persists across most European countries, including the UK (see Möhring 2018), has been directly attributed to women’s significantly higher likelihood than men of experiencing interruptions to their working patterns and of working part-time, and therefore having less chance to build up adequate future provision (see Ginn et al. 2001). Despite this, the expectations set by the state presume an unbroken career trajectory and the ability to make pension contributions throughout working life (Grady 2015). Furthermore, career-interruptions are likely to become a more frequent occurrence over time due to shifting demographics. With a growing ageing population, state attention to the issue of adequate elderly care is more urgent than ever, yet such work continues to be privatised and increasingly designated to the family unit (see Harding 2017). Thus, many dependency-workers’ career trajectories are likely to not only be punctuated by the demands of caring for a young family but will increasingly also encompass an expectation to provide assistance to elderly parents or parents-in-law (Orel et al. 2004). As the discussion in this section has illustrated, the economic effects of performing dependency-work in a society that does not adequately recognise nor value it are extensive and often lifelong. The state’s reluctance to intervene in the distribution of family resources other than upon relationship breakdown means that many of the disadvantages suffered by dependency-workers go unnoticed. However, with an expanding ageing population, it is crucial that the long-term effects of being a dependency-worker are given attention, as well as challenging the narrative that any economic disadvantages are freely chosen and therefore outside the scope of state concern.

Psychological Harms Psychological harms are profoundly intertwined with the economic harms discussed above and the spatial harms discussed below, but merit separate consideration. I refer to psychological harm in two contexts. The first relates to the psychological impacts of performing dependency-work itself, often arising as a result of pressure from the state to combine it with paid work, leading to a resulting loss of the personal or leisure time that is important for well-being. The second is the psychological impact of the perceived low societal and economic status of being a dependency-worker, including being labelled as having failed to live up to the autonomous ideal.

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As I argued in Chapter 2, dependency-work is heavily sentimentalised in liberal discourses, viewed as an expression of affection rather than productive and essential labour. Its conceptual, geographical, and temporal separation from the world of paid work means that its performance frequently goes unnoticed (Gordon-Bouvier 2019). It is assumed to lie beyond the concern of the state and of law, whose interest is economic production in the public sphere. Over time, there has also been a shift in the state’s expectations of dependency-workers’ participation in the economic realm. Whereas in the past, women were coercively restricted to the private realm of the household, discourses based on formal equality have now ensured the removal of any express barriers to women undertaking paid work. There is now an expectation that all citizens be economically active, regardless of whether they also perform unpaid work in the home. The problem is that there has not been a corresponding equality-revolution in the private sphere, with women continuing to perform the majority of the labour there. Thus, the modernday dependency-worker cannot accurately be described as confined to the home in the same way as her historical counterparts—rather, many problems arise due to the necessity of straddling both realms and to balance the roles in each. As McKie et al. argue: Women live out the contradictions of their identification and preoccupation with both care and their paid work in their daily activities. Worrying about what to cook for supper or organizing the children’s dental appointments can intrude on work time while the concerns of work can impinge upon both mothers’ tempers and their caring time at home. (McKie et al. 2002, p. 913)

The impacts of trying to juggle the expectations of financial productivity with those in the domestic realm were memorably described by Hochschild and Machung (1989) as a requirement for women to work a “second shift”. Their 1980s study focused on heterosexual married women, where they found that wives tended to work many more hours than their husbands (in a combination of paid and unpaid work), with a resultant impact on their free time. Furthermore, they noted the prevalence of so-called family myths (Hochschild and Machung 1989), whereby the couples in the study relied on the gendered ideology of the ‘proper’ roles of husbands and wives to justify to themselves the unequal division of labour in their own relationship. Subsequent research has shown similar patterns occurring in same-sex relationships, whereby the lower-earning partner is shown to assume the additional work of the ‘wife role’ (Moore 2011). A more recent study testing Hochhild’s original findings found that the problems of the 1980s had not been resolved in the present day, noting that “new bad news has been added to the old bad news”

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(Blair-Loy et al. 2015, p. 436), in reference to a growing social class gap, whereby working-class mothers fared especially badly in terms of the additional burden. The research suggests that women from all social classes face discrimination for attempts to work flexibly. However, whereas middle-class mothers are chided for spending ‘too much’ time at work to the supposed detriment of their children, working-class women are labelled as irresponsible for not working enough and expecting the state to support them (Williams et al. 2013). The double burden and its resultant loss of leisure time can take a substantial toll on the dependency-worker’s physical and psychological health. Access to ‘free time’ has been identified as an essential component of human happiness and flourishing (Nussbaum 2001), and is necessary to prevent excessive depletion of the dependency-worker’s resources (see Rai et al. 2014). Additionally, as I discussed in Chapter 2, the human body needs constant nourishment and rejuvenation, without which it cannot function effectively. Thus, the dual demands on dependency-workers mean that their bodies are often placed under strain, both physically and mentally (Rai et al. 2014). The research also illustrates gendered patterns to health impacts on dependencyworkers, with women tending to fare worse than men. For instance, sleep deprivation due to night-time care for dependent children affects mothers more than fathers, indicating a higher frequency of rest being interrupted due to the demands of dependency-work (Burgard 2011; Skinner and Dorrian 2015). The psychological impacts of dependency-work also vary depending on its precise nature. Caring for dependent adults, more so than caring for children, has been found to have negative mental and physical side effects, something that has been linked to carers experiencing emotions of compassion and fear of loss (see Bauer and Sousa-Poza 2015). The psychological burden can be especially onerous where the dependent person develops mental impairments and displays behavioural problems, which is why caring for a relative with dementia can be particularly taxing on the dependency-worker’s psychological health (see Schulz et al. 1995; Harding 2017). As with childcare, there is a gendered pattern to the way that looking after a dependent adult impacts on the worker. Female dependency-workers who care for adults experience a greater impact on mental health and well-being, with less support available to them than their male counterparts (Pinquart and Sörensen 2006; Penning and Wu 2015). The second aspect of psychological harm relates to the impact of the low social and economic status that the neoliberal state affords dependency-work. This aspect is deeply intertwined with the economic harms discussed above.

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Being wholly or partly dependent on an economically stronger partner can impact on relational dynamics, with those who are dependent often having less control or input over family decisions. As with the economic elements of relational vulnerability, the private family operates as a façade, masking status and power inequalities between its members. Resources are not only regarded as pooled, but as ‘neutral’, meaning that only their value rather than their origin is considered important. However, as Zelizer (1997) has argued, this perception of neutrality fails to acknowledge that money is a source of social power and can be laden with meaning extending to other aspects of a couple’s relationship. A lower-earning capacity can often translate to reduced status and decision-making power, with (disproportionately male) primary earners more likely to be in control of major financial decisions in the household (Nyman et al. 2013; Kirchler et al. 2013). This aspect was borne out in Pahl’s research on married couples during the 1980s, which found that gendered power imbalances were often directly tied to the parties’ respective economic positions. She found that “[h]usbands were more likely to dominate in decision-making where the wife did not have a job… conversely wives who were dominant in decision-making were usually in paid employment” (Pahl 1989, p. 174). Pahl’s research also found a noticeable link between income earning and increased self-esteem, with the ability to contribute even small amounts of money being sufficient to raise feelings of self-worth and importance for the housewives in her study (Pahl 1989). This is echoed by the findings in Vogler et al.’s (2008) study of married and cohabiting heterosexual couples, which found that an inability to financially contribute to the household led to an almost inevitable consequent reduction in status within the relationship. Due to the societal changes discussed above, the traditional breadwinner/homemaker arrangement is significantly less common than it was up until the middle of the twentieth century. The modern-day dependencyworker is likely to be engaged in some form of paid employment and therefore will be contributing to the household finances and the 1980s research on housewives needs to be read in the light of this shift. However, the psychological status and meaning of a second wage can be very different to that of the primary wage earner. Zelizer’s (1997) late twentieth-century analysis of joint earnings between heterosexual couples revealed that women were at a disadvantage even when economically active because their money was treated differently to that earned by their male partners. Money earned by women (which Zelizer refers to as “pin-money”) tended to be “merged into the family’s housekeeping money and usually spent on home and family, for clothing or food” (Zelizer 1989, p. 366). Further studies carried out

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in the twenty-first century (Sung and Bennett 2007; Bennett and Sung 2013) suggest that this gendered allocation of money remains an issue within marriage and cohabitation and that money is designated for different purposes depending on who earned it. Within dual earning heterosexual couples, there is still a tendency to allocate spending in a gendered manner. Men’s wages are more likely to spent on ‘essential’ items such as mortgage payments and bills, whereas women’s wages are used to meet day-to-day expenditure such as food and childcare, and more ‘frivolous’ items, such as holidays and entertainment (Sung and Bennett 2007; Bennett and Sung 2013). Studies also suggest that the income earned by the main earner is treated differently to a lower salary earned by a dependency-worker (Argyle and Furnham 2013). The notion of gendered spending is deeply embedded in social and political discourses. For instance, it is notable that in debates over the working parenthood, it is often assumed that women’s earnings are spent on childcare rather than it being a joint household expense, with a 2016 Times headline proclaiming that “Mothers with two tots need £40,000 to return to work” (Barrow 2016). This type of discourse strongly reinforces the idea that childcare is a female responsibility on both a practical and a financial level. It is also borne out in the research on how couples view their money, with Deutsch et al. (2003) finding that childcare expenses were notionally deducted before women’s earnings were deemed as counting towards the ‘family pot’. Whereas in the past, unequal financial household dynamics were more evident due to women’s direct dependency on male partners, shifts in workforce participation and the increased growth of a rhetoric of individual autonomy mean that many of these issues have been obscured. Family money management has become increasingly individualistic, with many couples maintaining separate bank accounts or engaging in partial rather than total pooling of income (see Kan and Laurie 2010). Such arrangements are often framed in language of equality and autonomy, suggesting that the parties have a greater degree of independence than in relationships where resources are pooled. However, Vogler et al. (2008) found that more individualised systems of money management did not remove gendered inequalities. As they argue, “as men’s responsibility for breadwinning has faded, along with the viability of claims to power based on it, power is coming to be based on the visibility of each individual’s earned income, which is deemed to confer power on the owner, over how it can be used” (Vogler et al. 2008, pp. 138–139). Having access to a joint account does not necessarily offer protection from power imbalances either. As Burgoyne (2004) has argued, even where couples pool their financial resources, access to resources does not bring about an

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equal level of control. Her research found that, where the parties were not equal contributors to a joint account, there was still a perceived imbalance, even if the lower earner was doing a greater amount of unpaid dependencywork. As she notes, [I]t is very difficult to ‘forget’ about the source of the money even when it ‘disappears’ into a joint account. Somehow it retains a psychological ‘label’ identifying the person who brought the money into the household and conferring special entitlements on the earner. (Burgoyne 2004, p. 167)

Thus, while joint pooling may have an outward appearance of egalitarianism, especially where both parties are contributing their income, it can be dangerous to place too much reliance on the appearance of equality. One study suggested that even where finances are pooled, this does mean that parties are given equal access to the pot and in fact the act of pooling can serve as a mask for the fact that one partner’s spending is prioritised over the other (Bisdee et al. 2013). In some cases, the psychological impacts of unequal earning power can be more sinister than a mere imbalance in decision-making power. Economic dependency has been shown to be linked to an increased risk of domestic abuse within intimate relationships (Rhodes and McKenzie 1999). In particular, it can operate as a significant factor preventing women from leaving their partner, believing it to be preferable to remain in an abusive or unhappy relationship rather than facing poverty and potential homelessness (Goldsack 1999). While I am by no means suggesting that all economically imbalanced relationships are inherently abusive, the broader power differential produced by financial inequality can allow abusive behaviour to take root and flourish. With this in mind, the state’s automatic presumption of intra-relational sharing to avoid direct intervention and support is particularly harmful, as it directly facilitates financially abusive patterns of behaviour within intimate relationships. Finally, the impacts of reduced status are not necessarily confined to the dynamics of the relationship itself, and dependency-workers face stigma on a broader level for failing to embody the virtues of the autonomous liberal subject. Rai et al. (2014, p. 92) have described the notion of “harm to citizenship entitlements” that they suggest occurs as a result of dependency-workers being considered non-contributors to the economy. This stigma is especially apparent where dependency-workers are forced to rely on state subsidies, illustrating Fineman’s (1995) argument about the rhetoric surrounding the “welfare mother”. As she argues, the mother who is unattached to a man is viewed as a deviant and destabilising influence on society and is blamed for

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many of its ills (Fineman 1995, pp. 102–105). Under a state that expects all its citizens to conform to an ideal of economic self-sufficiency, inability to do so is viewed as “evidence of a failing to attain or retain autonomous agency” (Dodds 2007, p. 501). The result is, as Young (1995, p. 547) argues, “normatively privileging independence … and making it a primary virtue of citizenship implies judging a huge number of people in liberal societies as less than full citizens”. As with the other strands of relational vulnerability, the psychological impacts of being a dependency-worker are potentially long-lasting. While the struggles to balance the demands of the second shift may lessen in intensity as dependent children become older, the risk of future interruptions in terms of elderly care means that a similar balancing-act may need to be struck in the future. Additionally, just as the economic impacts of dependency-work are potentially lifelong, so too are the effects of the resultant loss of status. In relationships where inequality extends into the realm of financial abuse, the dependency-worker’s financial dependency is already a factor that may prevent her from leaving it (Okin 1989). Research suggests that economic and emotional dependency means that the victim is less likely to terminate the relationship, leading to the risk of future harm (Bornstein 2006). This may be exacerbated where she also needs to consider the position of her dependents and she may feel less able to do so if she believes that those she cares for would suffer economic or other hardship. For instance, research on domestic abuse suggests that ‘staying for the sake of the children’ is a significant factor preventing women from leaving violent or otherwise abusive relationships (Strube and Barbour 1983, p. 788). While many of the issues discussed relate to harms that take place during the relationship, a significant aspect of psychological harm is future related, especially if the dependency-worker’s relationship breaks down. As I argued in Chapter 2, a core component of the embodied human condition is the human inability to control time, with inherent vulnerability consisting of being susceptible to its inevitability and its unpredictability. For dependencyworkers, this unchangeable aspect of the human condition becomes exacerbated because of the lack of material and financial resilience that may otherwise temper the impact of inevitability and unpredictability. This lack of a feeling of long-term security can in turn lead to emotional and psychological distress. Loxton’s (2005, p. 40) work on single mothers in Australia found that worries about an uncertain financial future were a common theme, motivated partly by an inability to make long-term financial provision by way of savings or home ownership. As she explains, “sole mothers described their futures as

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‘bleak’, ‘scary’, ‘daunting’ and ‘not good’” (Loxton 2005, p. 42). Similar findings were seen in Holdsworth’s (2011) research on the experiences of single mothers living in rental accommodation and unable to purchase a home. Here, one of the participants described “[living] one day at a time” and that “to look too far into the future would cause too much anxiety” (Holdsworth 2011, p. 66). Another participant explained the lack of hope that came with older age and a subsequent reduction in the opportunity to emulate society’s ideal, “it’s wearing at my age to look at your situation and realise that I don’t own anything. I’ve failed to live up to what’s expected… By our society’s standards I’m a failure” (Holdsworth 2011, p. 68). The long-term emotional toll of financial precarity is often overlooked in legal and political discourses but represents a real risk for the dependency-worker if she lacks access to the resources that can alleviate future hardships. Another psychologically harmful factor is the dependency-worker’s lack of control over her financial position in old age. Where she is reliant on the state for financial support, often as a direct result of relationship breakdown, she is at constant risk of a change in political climate that will lead to support that exists now being withdrawn or becoming unavailable in future. In the UK, over the past 40 years, the state has tended increasingly towards neoliberal policies (Barlow et al. 2017). In practice, this has meant that the ‘cradle-tograve’ welfare provisions that were established after the Second World War have gradually been eroded, with an enhanced emphasis on self-sufficiency and personal responsibility. Access to state benefits has become increasingly restricted, aimed at providing only the very minimum of a safety net in the short term, rather than ensuring any meaningful quality of life or future security. It is thus conceivable that such a political climate can be a source of concern and stress for the dependency-worker, who is uncertain whether current schemes for assistance, such as the state pension, will even exist when she reaches retirement age.

Spatial Harms I have labelled the third strand of relational vulnerability spatial harm—that is, harms that occur as a result of the dependency-worker’s relationship to the physical space of her home. More specifically, it relates to her reduced ability to obtain a secure home, both in the present day and in the future. This is an aspect of relational vulnerability that merits separate consideration from the more general category of economic harm. There is of course

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a substantial overlap between spatial and economic harms, with the likelihood of suffering spatial harms being considerably affected by one’s economic status. The owned home represents a substantial financial asset—likely to be the most valuable that a person holds in her lifetime. Yet, in this section of the chapter, I argue that the home is special , in that the connection that one has to one’s spatial surroundings transcends economic considerations, echoing Davies’ (2014, p. 154) argument that home is “not only our physical location and connections, but also our own interior architecture, our own psychologyhome is in this sense who we are”. As I explain below, recognition of the human need for a secure home is a different concept from the way that home has been configured and idealised in legal and political discourses. I argue that dependency-workers can have a complex and often conflicting relationship to the notion of home—one that exposes them to harm in the sense that they may struggle to gain security and permanence from their home, working in the home but having limited control of it due to reduced financial status, and being susceptible to the risk of loss of home should the relationship break down. The term ‘home’ is perhaps best described as a complex network of relationships between geographical space, social ideology, legal rights, and human emotions. In an effort to untangle some of this, I make a conceptual distinction here between what I call ‘home as security’ on the one hand and ‘home as ideology’ on the other. Home as security refers to the fact that, as embodied beings, we depend on our spatial surroundings for support and shelter against various physical harms that may otherwise befall us. Space, in the very basic form of a roof over one’s head, provides a refuge from the elements, as well as protection against the persons or things that would cause us harm if we were constantly exposed. It provides a place for the rest and rejuvenation of our bodies that is essential for their proper function. For instance, a lack of a secure space to sleep (such as street homelessness) renders a person uniquely susceptible to injury and attack due to the body’s defenceless state during sleep. Beyond this basic notion of shelter, home also provides security, belonging, and rootedness in a psychological sense that is essential to well-being. Sociologists have used the term ‘ontological security’ to describe this phenomenon, explaining how having a home shapes an individual’s identity, providing a point of stability in an otherwise precarious world (see Saunders 1990; Dupuis and Thorns 1998). In an embodied sense, the individual’s home environment and personal belongings support her routines and functions, reflecting her needs and tastes. In Young’s (2004, p. 156) words, “a person’s home is a space in which he or she dwells, carries out everyday activities of

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caring for self and others, plays, celebrates, plans, and grieves”. The connection to home is understood as one that grows over time, with frequent moves being associated with a reduced sense of belonging and rootedness (Hulse and Milligan 2014). Over time, the permanent home can take on the form of a ‘time capsule’, through its ability to preserve memories from the past, both through evoking recollections of events that happened within its walls and in providing a space for the display of material effects such as photographs and furniture (see Young 2004). The powerful combination of memory and familiar space was displayed in Gurney’s research on the meaning of home, which found that, for women in particular, their perception was fundamentally bound up with relational narratives and events that had played out in the space of the family home, including childbirth and relationship breakdown (Gurney 1990, 1997). Home is also viewed as an essential component of individual privacy and dignity. This reference to privacy is very different to the ideologically constructed ‘private sphere’ mentioned in Chapter 2, which governs state intervention. Instead, privacy here refers to abilities of selfdetermination and the shaping of identity, which, as Young (2004, p. 168) argues, extends to “the ability to have a dwelling space of one’s own, to which a person is able to control access, and in which one lives among the things that help support the narrative of one’s life”. There is a strong link between being spatially secure and possessing other forms of security. Those who are the most disadvantaged and marginalised in society usually also suffer some level of spatial insecurity. Sometimes this is highly visible, such as in the case of street homelessness, where affected individuals are exposed not only to the elements but to the constant social stigma of not having a personal space. In other cases, where the individual does have a home, albeit an inadequate one, the public visibility of the spatial vulnerability is reduced, but it is still keenly felt by those affected. For example, the 2017 Grenfell Tower tragedy sparked public shock in those unaware or oblivious to the spatially harmful conditions that some sectors of society are forced to endure in order to have a private space that they can call home (see Birke 2018). The images of the burning building and the subsequent reports of the death toll also brought into focus the human body’s inherent vulnerability in respect of the spaces that it occupies, and the extent of the individual’s helplessness in the face of a restrained state that prioritises economic concerns over physical safety. The contrasting concept that I want to explore in this section is ‘home as ideology’ and I will also examine its interaction with the notion of home as security. Home as ideology refers to the way that home is depicted in social, political, and legal discourses, something that does not necessarily correspond

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with individual lived experiences. Within the public imagination, the home is heavily idealised and romanticised, which also reinforces the gendered roles that are expected to be played out within its confines. Darke (1994, p. 21) has argued that “many of us, men and women, identify the home with the fantasy ‘good mother’, a place where we are accepted for what we are, that nurtures us and restores us so that after a time we can go out into the judgemental world again”. Drawing on the feminine language that is used to describe the idealised home within discourses, Price has also commented that: The imagery and vocabulary that feminize that space is subtly ubiquitous in the images of enclosure, protection, and warmth that connote both the womb and the vagina in a masculine imagination of enclosing safety, security, and dreamy warmth, that is simultaneously a point of origin and a desired goal. (Price 2002, p. 49)

Essentially, home as it is depicted in ideology is the spatial and material representation of the private family. The home marks the geographical boundary between the private and the public realm and thus functions as a line over which the state must not intrude. The home in ideology is constructed around an idealised view of the family that is presumed to own and occupy it (see Valverde 2015, p. 20), which is the heterosexual, ideally married family that I discussed in Chapter 2. While other forms of occupation do exist, these are not given the societal prominence or privilege that the owner-occupier family possesses. While home as an imagined place is touted as being “a ‘haven’ or ‘retreat’ where we are free to express our individualism in whatever way we choose” (Chapman and Hockey 1999, pp. 4–5), home as ideology also has a highly visible and public function, serving as “the site for the creation, reproduction and maintenance of patriarchal relations” (Bowlby et al. 1997, p. 345). The home as a geographical space is simultaneously private and highly visible, operating as a symbol of the ideal family unit but concealing much of the dependency-work that takes place within its walls. For example, Madigan and Munro (1991, p. 118) have argued that the situating of homes within specially constructed residential zones, such as suburbs, “gives substance to…domesticity”. The idealised home signals to the rest of society that the family living there is highly functional and economically self-sufficient. On the other hand, families who are considered dysfunctional are often forced to occupy stigmatised spatial zones, for example purpose-built social housing that is instantly recognisable to the outside world as having various negative connotations (including dependency on the welfare state). Additionally, although standards may vary from home to home, neglect of the domestic

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labour that is necessary to maintain the ideal home can also operate as a sign that the family has failed, and unacceptable standards of housework can be used as a reason for state intervention into the family (Young 2005). The ideological construction of home as the haven representing the private realm has prompted feminist critique of its veneration within the liberal tradition. It has been remarked that the home’s idealisation can serve as a mask to violence and oppression that frequently takes place within its confines (Goldsack 1999), with others noting that the image of home as a tranquil haven is a male perspective and does not capture the resentment that may be felt by women who also experience the home as a workplace (see, e.g., Ahrentzen 1992). Mimicking how the institution of the private family masks inequalities between its members, the home spatially conceals the gendered work that needs to be performed in ‘making’ it (a core component of dependency-work) behind an idealised façade. The message that dependency-work is unproductive and irrelevant outside the private family is reinforced by its spatial location. Instead, it is sentimentalised into the proper role of the good wife, mother, or daughter, whose proper place is to oversee the home and to be available to other members of the family. For instance, the numerous debates and studies about the potentially detrimental impacts on children whose mothers work outside of the home reinforce the notion that the socially constructed role of motherhood comes with a designated spatial location (see Büskens 2001). Within the ideology, the home also serves as a measure of economic status and success (Mallett 2004). Even where its main function is to provide a residence for family members, the home’s capital value can be exploited through secured lending that may be used to fund business ventures (Fox 2007). Certainly, in English property law, the economic function of the home as a capital asset, one to which third-party creditors may have rights, takes legal priority over the personal emotions that an individual may have to the space (Fox 2002, 2007 ; Keenan 2014). The home as symbolic of economic status only applies to the owned home, illustrating the hierarchy of tenure that exists in this country, whereby the ideal home is only attainable by those who also emulate the characteristics of the autonomous liberal subject. The owner-occupied “single-family detached” home represents compliance with the idealised life course that marks responsible citizenship (Valverde 2015, p. 19). The veneration of ownership and its depiction as the only acceptable form of tenure gained particular ground during the Thatcher era in the UK, which witnessed the growth of the political ideology characterised by market individualism and personal responsibility commonly labelled neoliberalism (see

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Gilbert 2018). A significant emphasis within policy (that continues to this day) was placed on promoting owner-occupation as the most desirable form of housing tenure (Ronald 2008). Ownership is normalised and promoted through various legal, social, and political means, whereas renting is viewed as suitable only as a temporary measure, with long-term renting seen as evidence of failure to live up to ideals of self-sufficiency (Bate 2018). In the 1980s, this was marked by promotion of the ‘right to buy’ scheme relating to social housing, as well as the implementation of reduced security of tenure for renters. In more recent times, governments have sought to offer assistance through Help to Buy initiatives, aimed at the ‘responsible citizen’ who aspires to home ownership (see Gregory 2016). In an era where house prices are rising exponentially out of line with growth of salaries, it is increasingly the case that the privileged status of home ownership is only genuinely available to those who can demonstrate the earning capacity to service mortgage payments. The right to buy scheme has also ensured that the available social housing stock has dwindled to the extent that the private rental market is the only realistic option for most of those who are unable to purchase a home. The private rental sector is heavily skewed in favour of the landlord owner, with uncapped rents and frequent substandard accommodation standards. It also does not offer any genuine security of tenure, with private rental tenancies being relatively easily and quickly terminable by the landlord giving notice. Those in the rental sector are subject to more frequent moves, leading to potential disruption and a sense of loss of security. The position of those in less privileged forms of tenure in societies that glorify ownerships is reflected in Valverde’s (2015, p. 19) comment that “having a private space to eat and sleep does not guarantee true citizenship and belonging”. The dependency-worker’s spatial vulnerability is tied to the fact that her ability to acquire ‘home as security’ is compromised. In the state’s promotion of ‘home as ideology’, the dependency-worker is required to work within the home, ensuring that it conforms to the ideal and provides a safe haven for other family members. However, as a result of her reduced financial status, the dependency-worker herself may struggle to achieve the spatial security necessary for her well-being. The extent of spatial harm suffered is linked to whether the partner relationship breaks down, as the economic impacts of relationship breakdown are likely to have a particularly detrimental impact on the ability to acquire a new home that offers genuine security (see Sullivan 1986; Dewilde and Stier 2014; Andreß and Hummelsheim 2009). This illustrates the extent to which the spatial strand of the dependency-worker’s relational vulnerability is intertwined with the economic one. It is because

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dependency-work impacts on individual earning capacity across a lifetime that divorced or separated dependency-workers are disadvantaged in terms of being able to acquire the societal privilege and secure tenure that is offered by owner-occupation. This is particularly true in an era of rising house prices, where the ability to acquire adequate spatial security is increasingly tied to individual earning capacity. In addition to difficulties in achieving spatial security post-separation, there are other forms of spatial harm that may occur during the course of the relationship. For the dependency-worker, the home is not necessarily the haven and refuge that it is painted in the ‘home as ideology’ discourse. Rather, for her, the home serves a dual function as a workplace, which may mean that her relationship to the space is different to that of her partner. One of the factors that come to bear on this is the dependency-worker’s degree of control over her home. Ridgway et al. (1994, p. 413) have argued that “empowerment … comes from controlling access to personal space, from being able to alter one’s environment and select one’s daily routine, and from having personal space that reflects and upholds one’s identity and interests”. Various feminist sociologists and anthropologists have examined women’s relationship to their spatial surroundings, a relationship that is often characterised by conflict and contradiction (see, e.g., Gurney 1990; Ahrentzen 1992; Young 2005). On the one hand, the gendered and sentimentalised roles that constitute the private family depict women as ‘belonging’ in the home and as being ‘out of place’ in the public sphere (see Gordon-Bouvier 2019). As part of their relational roles, women are tasked with ensuring the organisation and smooth running of the home and overseeing the work that takes place within its confines. On the other hand, there is a substantial difference between responsibility and control (Young 2005). The dependency-worker carries the burden of organising the home predominantly for the benefit of other members of the household, such as partners and children. However, this may mean that her own control over the space becomes diminished, particularly if her occupation or claim to ownership is not upheld by law and is entirely dependent on her relationship to her partner. Young (2005) has powerfully argued that the work involved in ‘making the home’, thus promoting the notion of the idealised and functional family, is dedicated to shaping the identity of others rather than the self. She argues that “women serve, nurture and maintain so that the bodies and souls of men and children gain confidence and extensive subjectivity to make their mark on the world” (Young 2005, p. 124). However, as she notes, “this homey role also deprives women of support for their own identity and projects” (Young 2005, p. 124). Dependency-work within the private family often

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involves a balancing-act between the routines and requirements of other family members, with the dependency-worker being expected to prioritise these over her own leisure time in the home (Adam 2003). Critical geographers have also argued that the risk of loss of identity is borne out through the home’s spatial ordering. The rise in the perceived importance of private spaces within the home, including home offices for the family breadwinner and own bedrooms for children, has not extended to giving women private space, but rather that they are expected to ‘make room’ for other family members (Madigan and Munro 1991, p. 127). Whitehorn (1987) has argued that “[w]omen have real difficulty in knowing what if anything is their own exact territory. In one sense a woman controls the whole house: but in another she may feel she owns nothing personally but her side of the wardrobe”. Due to the modern family’s temporal precarity, the dependency-worker’s relationship to her home is marred by the fact that relationship breakdown may entail a loss of home. Malos and Hague’s (1997, p. 398) study of women who leave the home upon relationship breakdown noted the impact of loss of home, arguing that “the need for safe, secure housing, of “a place to call their own” is particularly important because [women] are traditionally assigned to the care of the home and family”. Relationship breakdown may lead to a less secure home due to the dependency-worker’s inability to demonstrate the financial security necessary for legal ownership. As discussed above, a move from owned to rented accommodation in conjunction with relationship breakdown can also bring about a loss in social status. The dependencyworker’s reduced financial status and dependency can also operate as an obstacle to her being able to secure adequate rental accommodation. Significant numbers of private landlords refuse to let homes to those in receipt of welfare benefits, reinforcing the stigma of being dependent on the state (McKee and Hoolachan 2015). Current waiting lists for public housing or housing association properties, which offer a greater level of legal protection than assured shorthold tenancies, are oversubscribed and offer little choice in terms of the nature of the home. Even if the dependency-worker is in the position of being able to obtain mortgage funding to purchase a home, the amount of money available to her is likely to be affected by the presence of dependents. It is therefore clear that relationship breakdown can represent a significantly turbulent and worrying time for the dependency-worker, something that is likely to continue into her future. The issue of spatial vulnerability needs to be viewed with the dependencyworker’s lifelong need for housing in mind, something that is frequently overlooked in neoliberal state policies. For example, if the dependency-worker has young children and limited financial means, she is likely to be a priority

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for accommodation during the children’s minority and may even entitle her to the more legally secure social housing or housing association properties. While this may meet her short-term needs, it does not address her long-term housing situation. The lack of a secure home in older age is likely to impact severely on the dependency-worker’s well-being. She may find it more difficult to retire and may be forced to work beyond ordinary retirement age to continue to be able to pay rent. Home ownership, or lack of it, has an impact on an individual’s experience of ageing (Young 2004, p. 141). If the individual requires care in old age, the setting of this care can come to impact on her well-being. The capital value of the home may also provide a source of funds to pay for a higher standard of elderly care than what is provided by the state. The non-owning dependency-worker may be forced into sub-standard or otherwise unsuitable housing at a time in her life when ontological security and the maintenance of a connection to the past is of particular importance to her.

Conclusion In this chapter, drawing on a range of existing research, I have developed a theoretical framework through which to analyse the relational vulnerability that affects dependency-workers when the state does not adequately recognise or value their work. I have argued that relational vulnerability consists of three identifiable intersecting strands of harm: economic, psychological, and spatial. Economic harm is the easiest to measure, explaining why it dominates existing discussions over relationship-generated disadvantages. However, as I have explored in this chapter, there are other harmful effects that result from the reduced status that the neoliberal state affords dependency-workers. Continuing the theme of vulnerability’s temporality that I developed in Chapter 2, I explored how the harms that constitute relational vulnerability are not restricted to relationship breakdown, as they are frequently presented in legal discourses. Relational vulnerability occurring in the ‘intact family’ is often concealed, with the restrained state being reluctant to interfere in the private sphere unless the family breaks down. However, the dependencyworker’s lower status and increased likelihood of dependency on her partner mean that she may come to lack control and independence within the relationship. Much of the dependency-worker’s relational vulnerability is future related and will become apparent when she experiences the decline of old age. It is at this stage that its full impact can be felt, when the dependency-worker

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comes to draw on the resources that can help to cushion the effects of ageing and finds that these are lacking. My analysis of relational vulnerability continues in the next two chapters and I return there to some of the themes developed in these chapters. I aim to show how the legal framework governing the family contributes to relational vulnerability’s creation by reinforcing dependency-work as a private and gendered endeavour that lacks value beyond the family unit. In doing so, the legal framework also promotes the artificial autonomous liberal subject as the norm, with the dependency-worker being labelled as a failure to attain self-sufficiency.

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4 Vulnerability, Law, and the Married Family

So far, I have outlined the theoretical framework of the additional harms affecting those who perform dependency-work in the private family context. I have argued that relational vulnerability occurs as a result of neoliberal state policies and institutional structures that seek to conceal the realities of human vulnerability and dependency within the folds of the private family. Instead, an artificial notion of autonomous personhood is promoted as the norm. The state’s reinforcement of autonomy situates dependency-workers in a network of individual and institutional relations in which they are marginalised and devalued. In the next two chapters, I analyse and interrogate how law contributes to this process of marginalisation through the construction and regulation of the private conjugal family, in both the formal married (this chapter) and informal cohabiting (Chapter 5) context. I seek to examine how law helps to structure and shape the networks of relations in which we are all embedded (see Nedelsky 2011; Fineman 2017). Although the liberal philosophical tradition describes law as an entity that is separate from social and political life (Davies 2011), like other critical scholars, I regard it as a social construct that permits the reinforcement of dominant norms and ideologies. However, I recognise that law, in contrast to other state institutions, has substantial powers in terms of converting norms and conventions into authoritative truth that is difficult to challenge and disrupt. Therefore, it plays a pivotal part in defining the roles and behaviours that constitute the private family, reinforcing dependency-work as a gendered and sentimentalised endeavour that lacks economic value.

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In this chapter, I argue that the legal framework governing the married (and civilly partnered)1 family has always sought to uphold the liberal principles of individualistic autonomy and state restraint, simultaneously marginalising and stigmatising those who perform dependency-work. Furthermore, it has always constructed dependency-work as a gendered endeavour connected to the expected relational role of wives. However, the methods and discourses that law employs have notably shifted over time. Historically, women’s perceived domesticity excluded them from the public realm and labelled them as helpless victims, in need of financial assistance enforced by the courts. During the first decade of the twenty-first century, this was replaced with a rhetoric of formal equality, whereby dependency-work, while still viewed as gendered, was attributed with a distinct value leading to financial entitlement on divorce (Barlow 2007). Yet, as I argue, even within the discourse of equality, law continues to view dependency-work as gendered and inferior to income earning. In more recent years, the law governing the married family has undergone what I term an ‘autonomy turn’, whereby the principles of formal equality have been accompanied by stronger expectations of individualism and personal responsibility that echo the characteristics of the autonomous liberal subject discussed in previous chapters. Under the new emphasis on autonomy, the dependency-worker has lost her past status of victimhood and is instead held to the same standards as the unencumbered, financially self-sufficient ideal citizen. Inevitably, as I show in this chapter, the dependency-worker is unable to comply with these standards, leading her to be stigmatised as failing to attain self-sufficiency and as placing a burden on the restrained state.

Law’s Influence on Marriage Employing the vulnerability lens as a “heuristic device…pulling us back to examine hidden assumption and biases” (Fineman 2008, p. 9) involves challenging seemingly neutral and common-sense concepts and structures and exposing the ways in which they promote dominant political interests. As Fineman argues:

1The Civil Partnership (Opposite Sex) Regulations 2019 extended civil partnership to opposite-sex couples, meaning that all couples now have the option whether to formalise their relationship through marriage or civil partnership. Marriage and civil partnership are almost identical in terms of their legal effect and financial consequences and, therefore, references to the married family should be taken to also include the civilly partnered family, unless expressly stated otherwise.

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Vulnerability theory recognizes the many ways in which societal relationships and institutions are shaped, reinforced, and modified in and through law, and argues that the state is always actively involved in the allocation, preservation, or maintenance of privilege and disadvantage. (Fineman 2015)

Throughout this chapter, I aim to expose how law, through the discourses and narratives that it promotes and perpetuates, upholds the state’s unrealistic expectations of autonomy and economic self-sufficiency. As I argued in Chapter 2, law possesses unique powers in terms of its ability to give force and legitimacy to certain perspectives, while denouncing and marginalising others. However, interrogation of its workings is complicated by law’s depiction in liberal jurisprudential writings as a “bounded system separated from the complex realities of everyday life” (Davies 2013, p. 65). Law’s denial that it, like all state institutions, is a mere construct that serves dominant state interests means that, as Nedelsky (2011, p. 72) argues, “relations structured by law often serve to hide power and to hide the role of the state in that power”. Legal actors, including judges, barristers, and solicitors, interpret law’s ‘black letter’ drawing on a broad framework of assumptions, norms, and personal experiences. This background frame of reference against which decisions are made and advice is given is particularly relevant in the field of family law, where the legislation affords judges a significant degree of discretion to achieve relatively nebulous concepts of ‘fairness’ and ‘justice’. Yet, the importance of the background against which seemingly neutral rules are interpreted is silenced by liberal theory’s insistence that law is ordered and rational, unaffected by emotions and biases (see Fox-O’Mahony 2014). In this chapter and Chapter 5, I examine the assumptions about personhood underlying the legal rules, specifically in terms of how dependency-work is constructed within judicial discourses. The state promotes the individualistic autonomous liberal subject as the norm, with deviations treated as evidence of individual failure. Within the legal discourse, dependencywork is privatised and gendered, deemed to lie largely beyond state concern. Law reinforces this by engaging in a process of storytelling, whereby the myths and ideologies that uphold the dominant viewpoint are continuously retold and affirmed by its actors. As Naffine (1998, p. 196) has argued, dominant legal narratives operate to create “a sense of security and order” and, as Lincoln (1989, p. 25) suggests “[helps] maintain society in its regular and accustomed forms”. As I show below, the dominant narrative of the idealised married family comprised of gendered roles has ensured that dependency-work remains devalued, while the rhetoric of autonomy and

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personal responsibility has led to the marginalisation of those who perform dependency-work and, as a result, cannot conform to the autonomous ideal. Law’s instrumental role in shaping the lives and relations of its subjects is also evident in the shifts over time of definitions of marriage and the family. While, as Nedelsky (2011, p. 68) acknowledges, there is an argument that legal reforms merely mirror societal shifts that have already taken place, this presumes a separation between law and its subjects, overlooking that law is “a fact of a complex social existence…intertwined with many other dimensions of everyday life” (Davies 2011). Law governs the dynamics and distribution of power within relationships, even where such relationships are claimed to exist within an extra-legal private sphere. An example of this is law’s changing of the meaning of marriage over time. Marriage has evolved from Lord Penzance’s often cited definition of “the voluntary union for life of one man and one woman” in Hyde v Hyde and Woodmansee (1866)1 P&D 130, p. 133 to the eventual inclusion of same-sex marriage (introduced by the Marriage Same Sex Couples Act 2013) and increasing liberalisation of divorce laws towards a position of no-fault ‘divorce on demand’ (under the newly passed Divorce Dissolution and Separation Act 2020). As Nedelsky has argued, such legal reforms can bring about “a change in the kind of relationship marriage is” that parties cannot merely choose to disregard. Law sets the parameters of ostensibly private relationships, demonstrating Olsen’s (1984, p. 837) observation that “the state is responsible for the background rules that affect people’s domestic behaviours”. It is also the legal framework and the shifts in judicial interpretations of marriage (although doubtless also influenced by broader social norms) that have led to the dependencyworker transforming in the discourse from helpless victim to notionally equal partner, to her present position, where she is presented as blameworthy for failing to conform to expectations of economic self-sufficiency.

Marriage, Divorce, and the Restrained State Legal definitions and understandings of marriage have always relied on the existence of a clear binary between the public realm and the private sphere, the latter of which is represented by the conjugal family. As I discussed in Chapter 2, the private sphere in liberal theory is characterised as being free from state interference and control, this being necessary if the state is to respect the autonomy of its citizens. Yet, it is acknowledged even among proponents of liberal theory that marriage also has a public function. The state promotes marriage as the ideal family form, privileging it above all other

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relationships. The heterosexual married family is considered to be the bedrock of society—a symbol of security and stability. Even in an era where the law recognises more diverse family forms, these are still judged according to their similarity to the heterosexual married family (Brown 2019; Bendall 2016). Despite its claims of restraint, the state seeks to incentivise citizens to marry, which has been defended on the basis that “it is legitimate for the state to support a form of life that is beneficial to the rest of society and reduces future claims on the public purse” (Rowthorn 2002). Crucially, marriage and the heteronormative social roles of husband and wife are imbued with behavioural expectations that help ensure that the family takes responsibility for dependency-work without state assistance, while simultaneously remaining an economically self-sufficient unit. This in turn permits the perpetuation of individualistic autonomy as the norm. As I have discussed in previous chapters, despite the state’s obvious stake in the married family, its legal regulation is characterised by a strong principle of non-intervention, reinforcing the notion of the liberal restrained state (Fineman 2001). As O’Donovan (1985, p. 12) argues “the family and the married couple remain an entity that is taken for granted. The couple is a unit, a black box, into which the law does not purport to peer”. During the marriage, the state is largely unconcerned with matters of intra-relational inequality, such as how dependency-work is divided between spouses or how financial resources are shared, as discussed in Chapter 3. Intrusion in the private realm is considered a harmful encroachment on individual autonomy, interfering with the individual’s ability to self-govern. The institution of marriage, more so than any other relationship, permits the realities of the temporally fluctuating vulnerable human condition to be concealed from public view. Historically, marriage’s status as a union for life meant that dependency and its consequences could be permanently hidden within its folds, allowing the state to remain restrained. However, while the state continues to benefit from the privatisation of dependency and vulnerability, its increasing emphasis on neoliberal individualism has also led to the acceptance that spouses must have a right to free exit from the union in order for their autonomy to be respected (Green 1998). This is reflected in increasingly liberal laws of divorce, moving towards a position where divorce is available on unilateral demand (see Gordon-Bouvier 2020). Thus, modern marriage is more temporally fragile than it was in the past and it cannot provide the long-term economic security that it once did (both for the spouses and for the state). However, marriage’s temporal precarity has not been accompanied by an increased availability of state support to address the impact of relationship breakdown. Instead, the state continues to insist

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on economic self-sufficiency, whether or not the marital relationship remains intact. Where law does intervene, it is predominantly in the form of privatised solutions involving redistribution of financial assets between the spouses. For dependency-workers, the nature and temporality of this response are insufficient to address all elements of their relational vulnerability. Various feminist scholars have argued that state restraint is a fallacy, and this too is a core tenet of vulnerability theory. The state is never wholly removed from interactions between its citizens, even where it claims to be (Fineman 2010). As Olsen (1984, p. 836) has argued, “as long as a state exists and enforces any laws at all, it makes political choices. The state cannot be neutral or remain uninvolved, nor would anyone want the state to do so”. Neoliberal policies based on state restraint privatise and individualise questions of vulnerability and dependency, requiring disputes to be dealt with predominantly by way of private ordering. Private ordering is presented as the state merely ‘rubber-stamping’ independently negotiated agreements (and is therefore compliant with respect to individual autonomy). However, this is a simplistic explanation that downplays the state’s constant presence in the lives of its subjects, even in seemingly private interactions and agreements. As Fineman argues: No matter how we try to isolate transactions, the state is always a residual player in so called private arrangements, having fashioned both the background rules that shape those agreements and maintaining the background institutions upon which parties ultimately rely. (Fineman 2008, p. 7)

As I discuss in further detail below, by promoting non-intervention policies and private ordering within family law, the state signals its expectation that parties are autonomous, rational, and capable of bargaining for their rights. By declining to intervene in the married family, the state is furthermore endorsing any power or resource imbalances that exist between its members, often labelling these as natural and inevitable.

Law and Married Dependency-Workers Dependency-work performed in the context of marriage has a greater legal visibility and potential value than when it is performed in informal relationships, an aspect that I also discuss in Chapter 5. Barlow (2007, p. 253) has commented that “[i]t is…in the marriage context that unpaid caregiving has been seen as worthy of recognition and financial compensation in England, Wales and Northern Ireland”. However, as she recognises, “its

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value is only realisable on divorce” (Barlow 2007, p. 253). This illustrates the temporal limitations of the existing divorce regime, arising due to law’s lack of concern with the value or distribution of dependency-work as long as the marriage subsists. Therefore, the extent to which the state values dependencywork within marriage in any meaningful sense is questionable. Its worth is restricted to being realised within the narrow time frame of divorce and its immediate aftermath. The temporal structure of state intervention thus contributes to the creation of relational vulnerability by providing few opportunities for dependency-workers to be compensated for their labour. Relational inequalities and harms that occur during the marriage remain hidden from the state’s gaze. These can have long-term repercussions that are not capable of being rectified by the legal framework’s limited attempts to redress inequality at the point of divorce. Thus, my vulnerability analysis in this book not only addresses the issue of whether law decides to intervene in the family (in terms of recognising the value of dependency-work and the inequalities that its unequal distribution brings about), but also considers the importance of when it chooses to do so and the impacts of this timing on the dependency-worker.

The Redistributive Regime Upon divorce, it is open to either party to seek a financial order under Part 2 of the Matrimonial Causes Act 1973.2 English courts famously enjoy a wide discretion to divide assets between spouses and to make a range of capital and income orders, taking into account the list of factors in section 25 of the Matrimonial Causes Act.3 While the statute itself does not explicitly contain 2 For

civil partnership dissolution, the court’s redistributive powers are contained in Schedule 5 to the Civil Partnership Act 2004 and are virtually identical in nature to those in Part 2 of the Matrimonial Causes Act 1973. In Lawrence v Gallagher [2012] EWCA Civ 394, the Court of Appeal confirmed that the principles applicable to redistribution following civil partnership dissolution are the same as those applicable where the couple was married. 3 Under s 25(1), “first consideration” must be given to the welfare when minor of any child of the family. The factors set out in s 25(2) that the court must have regard to when making a financial order are (a) the income, earning capacity, property, and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b) the financial needs, obligations, and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f ) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard

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an overarching principle or purpose of the discretionary exercise, the case law has clarified that the court must aim to achieve “fairness” between the parties (White v White [2001] 1 AC 596). Fairness has been further explained to consist of the ‘strands’ of meeting the spouses’ needs (these being generously interpreted), sharing the economic fruits of the marriage, and compensating for any economic disadvantage arising as a result of the marriage (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24). Subsequent cases have added respect for party autonomy as a fourth strand of the court’s exercise (see Radmacher v Granatino [2010] UKSC 42; V v V (Prenuptial Agreement) [2011] EWHC 3230 (Fam)). However, while the judicial principles serve to provide an element of clarification of the nature of the court’s exercise, the discretion remains broad, which has led Bendall (2016, p. 268) to comment that the marital distribution system “attributes legal actors with an integral role in shaping the law”. This flexibility enables judges to take account of social changes and pay attention to individual circumstances. However, it also means that the black letter of the law is heavily dependent on a largely unspoken and undefined normative framework or view of the family for its interpretation, including judges’ own perceptions of the role of marriage and the norms governing it. As I illustrate below, this normative framework has undergone a notable evolution over the past half-century but has always promoted economic self-sufficiency as the ideal.

Tracing the Evolution of the Dependency-Worker’s Role In this section, I argue that even as perceptions of marriage and gender have shifted over time, the law governing financial provision on divorce has always endorsed the artificial concept of autonomous personhood as the norm, marginalising and stigmatising dependency-workers who cannot conform to this. However, while the reverence for autonomous self-sufficiency has remained constant, the perception and description of the dependency-worker within the judicial discourse have undergone a substantial transformation over time.

it; (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

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Paternalism and Protection: The Early Financial Provision Principles The family court’s jurisdiction to make financial orders on marital breakdown initially had a paternalistic and protective function to safeguard dependent wives against the hardship that they would face upon the loss of financial support from their husbands. The court was also concerned with ensuring that support-obligations remained privatised in order to ensure that the state was not made to take on this burden. Lord Atkin in Hyman v Hyman [1929] AC 601, p. 629 explained that the court’s powers to order a husband to pay maintenance to his wife when they separated “were granted partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support”. Thus, the wife’s disadvantaged position was understood as arising from a role specialisation that was considered to be natural and inevitable. However, it was made clear that the law’s role was restricted to ensuring that she did not suffer undue future hardship on divorce. There was no question that her dependency-work should be recognised as having contributed anything of value outside of the private family context, nor that she should be compensated for her work. In fact, women’s assumed domesticity operated to justify lower awards even following the introduction of the discretionary redistributive regime under the Matrimonial Proceedings and Property Act 1970 (the precursor to the Matrimonial Causes Act 1973). This can be seen in Lord Denning’s infamous justification for the ‘one-third rule’ in Wachtel v Wachtel [1973] Fam 72, which introduced a practice of allocating one-third of assets to wives and two-thirds to husbands. Here, Lord Denning reasoned that: The husband will have to go out to week all day and must get some woman to look after the house- either a wife, if he remarries, or a housekeeper, if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may go out to work herself, but she will not usually employ a housekeeper. She will do most of the housework herself, perhaps with some help. Or she may remarry, in which case her new husband will provide for her. (Wachtel v Wachtel, p. 94)

His words illustrate the judiciary’s reliance on the notion of separate spheres with designated roles for men and women. It demonstrates the existence of the background framework of norms and values against which Lord Denning interprets the apparently neutral language in the statute. Indeed, the wording of the Matrimonial Causes Act 1973 itself makes no mention of the gendered

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roles of husbands and wives, nor does it suggest that different legal principles should apply to each. Instead, where these are mentioned in the case law, they are incorporated by the judiciary, inevitably drawing on the judges’ individual beliefs and values, which are given authority by virtue of the formal setting in which they are expressed. Lord Denning demonstrates a view that women’s responsibility for domestic work is a natural fact. Equally, his comments about the husband’s need to employ a (female) housekeeper if he does not remarry emphasise his opinion of men’s lack of belonging in the domestic realm. In this way, the respective social statuses of husband and wife are cemented by the legal process, with the wife’s status of dependent rather than equal partner becoming a matter of judicial authority rather than merely a societal norm. This shows the extent of law’s influence on ostensibly private relationships. Through its narrative and discourse, law gives authority to social norms and conventions that operate to shape interpersonal interactions. The historical approach to financial provision, whereby dependent wives were restricted to their ‘reasonable requirements’ was based on viewing the dependency-worker wife as a passive victim. The wife was unable to conform to the norms of ideal autonomous and self-sufficient citizenship, which were emulated by her income-earning husband. Although the state intervened to ensure that she was provided for following divorce, such intervention was disempowering and to a large part motivated by a desire to reduce the cost to the public purse. Thus, this represents a clear example of the state’s tendency to pathologise vulnerability and dependency. The wife as victim was indeed regarded as ‘vulnerable’ in the narrow sense and therefore in need of protection, but this simultaneously reinforced that the ideal was self-sufficiency.

White v White: The Dawn of Formal Equality The practice of limiting wives to their reasonable requirements continued until the landmark House of Lords case White v White in 2000. White was the first time that the courts explicitly sought to place direct value on dependency-work performed during the marriage and equate it to economic contributions. It did so through a formal equality approach, introducing a principle of non-discrimination against homemakers. In the judgement, Lord Nicholls (p. 605) argued that “there is no place for discrimination between husband and wife and their respective roles. Typically a husband and wife share the activities of earning money, running their home and caring for their children”. The House of Lords confirmed that assets should be treated

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as having been built up and earned over the course of the marriage, whatever form the parties’ contributions had taken. In this sense, it has been argued by academic commentators that White “does not stop at non-discrimination, but asserts the equal value in economic terms of different roles” (Bailey-Harris 2001, p. 539). The discourse of accumulation of marital assets over time or ‘earning a share’ illustrated that the law’s role had moved on from purely saving the dependent wife from post-divorce hardship. White signalled a clear shift in judicial perceptions of the nature of the marital relationship—a move from a patriarchal institution to a modern partnership of equals. The wife who performed dependency-work (for it was still assumed that this was the wife) had been moved from her inferior status as victim to someone whose contribution merited reward based on its inherent value. While White was a welcome improvement on the earlier disempowering and paternalistic discourse, it remained firmly based on a principle of state restraint. As discussed above, the temporality of state intervention whereby the value of dependency-work can only be recognised if the marriage breaks down calls into question the extent to which the state truly places worth on it. Any value is restricted to the context of the individual family unit, rather than recognising the state’s broader dependency on unpaid social reproduction for its function. Thus, the judiciary’s artificial elevation of dependency-work to ensure formal equality between the spouses does not bring about a sufficiently radical transformation of the broader societal perceptions of its value. In particular, the formal equality approach does not challenge the various power imbalances and harms that can arise during the marriage as a result of role specialisation. Nor does White interrogate the gendered distribution of dependency-work during the marriage (see Bendall 2014). Although the discourse employed is very different, Lord Nicholls in White draws on the same traditional, gendered, heteronormative vision of marriage that Lord Denning did in Wachtel . While Lord Nicholls describes looking after the home and family as having equal value to income earning, it remains categorised in his mind as ‘women’s work’. And, just as Mrs Wachtel’s perceived domesticity operated to confine her to a lower award, an analysis of the facts of White reveals that Mrs White was also restricted by her association with the private domestic sphere. The spouses both came from several generations of farmers—indeed, “farming was in their blood” according to Lord Nicholls (p. 600). Throughout their long marriage, they had built up assets worth approximately £4.6 million at the time of their divorce. While both the Court of Appeal and the House of Lords took care to refer to them as “equal partners” in the farming business (White v White [1999] Fam 304, 312 (Thorpe

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LJ) and White v White [2001], p. 600), the extent to which Mrs White was genuinely treated as such is doubted. The first instance judge, Holman J, had viewed her intentions to acquire a farm in her own name as unrealistic and fanciful, despite her lifetime of farming experience. He dismissed her plans as having “strong emotional, but little financial, sense” (reproduced in White v White [1999], p. 310), thus implying a lack of the rationality that Mr White was assumed to possess when Holman J said that he “does…reasonably require to be able to continue farming in a worthwhile way” (White v White, [1999], p. 311). It was clear in the first instance decision that Mr White’s commercial plans assumed priority over those of his former wife. In the House of Lords, Mrs White’s role as a farmer with a long working history was also downplayed in favour of her domestic role within the home. Lord Nicholls explained that, “within the home it was the wife who primarily brought up the children” and, almost as an afterthought, he noted that “she also worked hard in all sorts of ways on the farm” (p. 602). Despite the fact that the children were long since grown up by the time the court was hearing the case, Mrs White struggled to break free of the image of housewife and caregiver. Lord Nicholls placed her in a separate realm to her husband when he commented that “if, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets” (p. 605, emphasis added), clearly insinuating that it was the husband’s work that had predominantly built up the assets, while the wife tended to the home. It should also be noted that, despite the case establishing the principle of equal sharing in financial provision cases, Mrs White did not receive an equal share in this case, as the House of Lords considered that her award of £1.5 m (constituting approximately 40% of the available assets) lay within the acceptable ambit of judicial discretion, albeit at the lower end (see Bailey-Harris 2001). Therefore, while White represented a radical departure from the paternalism and discrimination illustrated in the ‘reasonable requirements’ discourse, the equality it professed to promote was largely illusory rather than substantive. While Mrs White appeared more empowered by the ‘separatebut-equal’ discourse than her 1970s counterpart, Mrs Wachtel, her natural role as homemaker and caregiver was not challenged in any meaningful sense. In both scenarios, the state remained restrained, with post-divorce financial issues viewed as private problems to be redressed between the spouses rather than having any broader public relevance.

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A Move Towards Substantive Equality The equality discourse developed in White was further bolstered in the joint appeal Miller v Miller; McFarlane v McFarlane, which sought to develop further the components of fairness, and introduced the idea of compensation for relationship-generated disadvantage suffered as a result of role specialisation. The McFarlane marriage had lasted over sixteen years, and the parties had three children. Mrs McFarlane had given up her City legal career in order to take on a traditional homemaker and child-carer role, allowing Mr McFarlane’s accountancy career to flourish, generating substantial capital wealth and a seven-figure salary. The House of Lords directly addressed the concept of relationship-generated disadvantage and its gendered nature, with Lord Nicholls noting that “women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as homemaker and child-carer” (para 13). As the House of Lords emphasised, it would be appropriate in cases such as these, where the economic inequality is clearly a result of the relationship, for the financially stronger spouse to provide compensation for the other’s disadvantage. As Bendall (2016, p. 269) argues, Miller developed the existing law “to achieve a form of substantive equality (under which the law applies differently to different groups), raising homemakers from their subordinate position”. Whereas White had sought to imbue the marital roles with formal equal status, the Miller judgement addressed the issue that, despite proclamations from the courts that dependency-work is of equal value to income earning, this does not translate to equal status outside the courtroom. In this sense, the judges in Miller demonstrated an awareness of the longer-term implications of role specialisation (which cannot always be addressed through an equal capital division at the point of divorce), as well as the advantage that is conferred on a breadwinner who is able, by virtue of the work performed by the dependency-worker, to emulate the unburdened ideal worker that underpins liberal theory. The framing of the compensation argument (albeit examined only in terms of economic disadvantages) demonstrated at least some consideration of the longer-term, often lifelong, impacts of performing dependency-work. While the move from formal to substantive equality should be welcomed, Miller still represents a relatively limited and impoverished form of state intervention. Notably, the case has been accused of perpetuating a heteronormative image of marriage by failing to substantially challenge the gendered nature of role specialisation (see Bendall 2014, 2016). In her judgement, Baroness Hale mentions a societal shift, whereby “gender roles…become

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more flexible within the marriage, with bread-winning and home-making responsibilities being shared and changing over time” (Miller v Miller, para 123), but she also attributes role specialisation to private choices made by the parties to the marriage (Miller v Miller, para 119), without interrogating the broader state institutional structures that mean that this is often less of an active choice than an inevitability. As I argued in Chapter 2, the problem is not merely that dependency-work is devalued, but that its performance is unequally distributed (usually along gendered lines), allowing some people to emulate the qualities of the unencumbered autonomous liberal subject as a direct result of the disproportionate amount of unpaid labour performed by others. Role specialisation allows the private family unit to fulfil its dual economic and caregiving expectations, which directly benefits the state and allows it to remain restrained. Yet, the Miller judgement’s discourse of individual choice downplays the state’s role in creating the conditions that make role specialisation necessary by presenting relationship-generated disadvantage as a private matter for which one spouse should compensate the other.

A New Era: The Autonomy Turn I will now address what I term the ‘autonomy turn’ (Gordon-Bouvier 2020) within family law, which represents the final stage of the dependency-worker’s evolution within the judicial discourse. The autonomy turn has become increasingly prevalent during the last decade. It represents an identifiable move towards embracing and promoting ideals of individualism, personal responsibility, and financial self-sufficiency. As Diduck (2014, p. 203) has remarked, there has been a departure from the focus on promoting substantive equality, noting that “the language has…shifted. It is now that of autonomy”. In particular, the past decade of family law jurisprudence has demonstrated growing caution and disapproval of post-divorce dependency, even where this can reasonably be described as having been generated by the marriage (Gordon-Bouvier 2020). The autonomy turn has marked an increased promotion of the qualities possessed by the hypothetical, invulnerable, liberal subject, accompanied by decreased tolerance of any visible dependency and vulnerability. It has also placed greater emphasis on private methods of resolving disputes, emphasising that the state should be minimal and restrained. Below, I will consider three key manifestations of the autonomy turn in the judicial discourse and the role they have played in further marginalising dependency-workers. These are the emphasis on swift

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economic recovery from divorce, the increasing privatisation of post-divorce obligations through prenuptial agreements, and the promotion of out-ofcourt settlements. The autonomy turn has once more prompted a shift in the dependency-worker’s status. Rather than being consigned to a separate category of domesticity, she is now expected to live up to the same standards as the hypothetical autonomous liberal subject.

The Clean Break: Discourses of Self-Righting The court’s duty to consider a clean break upon divorce is set out in section 25A of the Matrimonial Causes Act and describes an immediate or deferred termination of financial commitments between the parties on divorce. The requirement to consider a clean break was introduced by the Matrimonial and Family Proceedings Act 1984 and replaced the so-called minimal loss principle (Eekelaar 1984, p. 109) contained in section 25 of the Matrimonial Causes Act 1973, which had sought to place the parties in the position they would have been in had the marriage not broken down and each had fulfilled their obligations towards the other. The early case law dealing with clean breaks suggested that, although there was a judicial duty to consider one, this did not translate into a presumption in favour of terminating obligations, particularly where there were minor children of the marriage (see, e.g., Suter v Suter and Jones [1987] Fam 111; Clutton v Clutton [1991] FCR 265). However, more recent decisions demonstrate a preference for a clean break wherever this is possible, with Bailey-Harris (2005, p. 235) arguing that the duty to consider a clean break “has now been elevated to the status of a principle” (see also Douglas 2018). It has now been established that the court will order a clean break unless it can be shown that one spouse cannot adjust without undue hardship (see Matthews v Matthews [2013] EWCA Civ 1874; SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam)). Additionally, while the clean break was initially considered mainly suited to so-called big money cases where available capital far exceeds the parties’ needs, it has now become commonplace even where the assets are much more modest. As has been clarified in Waggott v Waggott [2018] EWCA Civ 727, the future earning capacity of one spouse is not a matrimonial asset that can be divided between the parties in the form of an ongoing periodical payments order. This is the case even if the earning capacity in question has been entirely built up during the marriage, assisted by the other spouse’s domestic contributions. Thus, a disparity in future earning potential does not by itself warrant an order for periodical payments unless it can be justified by

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reference to need. The exception to this is where there are insufficient capital assets to compensate one spouse for relationship-generated disadvantage (as established in Miller v Miller;McFarlane v McFarlane) and an ongoing periodical payments order is necessary. However, courts have been restrictive in their application of the compensation principle, with Mostyn J explaining that it would be “a very rare and exceptional case where the principle will be capable of being successfully invoked”, speculating that compensation would only be appropriate “where the court can say…with almost near certainty that the claimant gave up a very high earning career” (SA v PA [2014] EWHC 392, para 36). Although compensation was successfully pleaded in RC v JC [2020] EWHC (Fam) 466, Moor J stressed that “such cases will be very much the exception rather than the rule” (RC v JC, para 72). The autonomy turn is also fuelled by political and societal discourses around divorce that continually reinforce ideals of individualism and selfsufficiency. Despite the relative rarity of periodical payments orders (Miles and Hitchings 2018), England and Wales continue to be described in media and politics as the world’s ‘divorce capital’, accused of being uncommonly generous towards the financially weaker spouse (nearly always wives), enabling them to claim a ‘meal-ticket for life’ and thus allowing them to avoid becoming financially independent on divorce (see Thompson 2016, 2019). Thompson (2016, p. 1228) has argued that much of the discourse is based on the existence of a societal problem of ‘gold-digging’, which refers to “a woman who doesn’t necessarily marry for money, but undeservedly receives a large sum on divorce in spite of having made no direct financial contribution to the marriage” (emphasis in original). The gold-digger trope is not merely a feature of salacious tabloid headlines, but was also directly invoked by academic and cross-bencher Baroness Ruth Deech in the debates on her controversial Divorce and Financial Provision Bills,4 which proposed to limit periodical payments to a maximum period of five years in all but exceptional circumstances (s 5 Divorce and Financial Provision Bill 2017–2019). In the course of the parliamentary debates, Deech described her proposals, inter alia, as “a Bill for every man who was left with the impression that he had been deprived irrationally of everything he had worked for” (HL Deb (2014) 754, col. 1491). Thus, despite the clean break’s prevalence, the broader discourse perpetuates the idea that any post-divorce dependency is undesirable. The promotion of the clean break and the growing distrust of longerterm dependency reveal law’s expectation of ‘self-righting’, referring to the ability to quickly recover from any dependency that has been generated by 4 Versions

of Deech’s Bill were introduced during the 2014–1015, 2016–2017, and 2017–2019 parliamentary sessions.

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the marriage, or ‘bouncing back’ from adversity as soon as possible (Joseph 2013). As I argued in the previous chapters, liberal and neoliberal theories of autonomous personhood envisage that all persons possess an innate ability to be self-sufficient. Therefore, lengthy post-divorce dependency points to evidence of personal failure to avail oneself of the opportunities that the state provides to all its citizens (see Fineman 2004). By setting expectations of how long dependency can ‘legitimately’ last (seen, for instance, in Deech’s proposed time limit for spousal maintenance orders), law sets temporal boundaries that distinguish between those who it deems to be deserving and those who it does not. As I have argued elsewhere (Gordon-Bouvier 2020), there now exists not only an expectation of eventual self-sufficiency following divorce, but also that this must be achieved swiftly, with the temporal parameters of tolerated dependency rapidly shrinking. Distinctions are drawn, through the use of legal timescales, between a ‘deserving’ payee, who may need some initial assistance, but self-rights within the set time frame, and the unscrupulous ‘alimony-drone’, who is seeking a ‘meal-ticket for life’ by refusing to move on from the marriage (see Gordon-Bouvier 2020). The autonomy-based discourse surrounding the clean break illustrates how the dependency-worker struggles to live up to the temporal trajectory imposed by liberal theory. As discussed in Chapter 2, the ideal autonomous subject upon which the law is based is temporally positioned as constantly moving forwards and making progress. By contrast, the dependent spouse is depicted in the legal discourse as someone who is unable to move on. Rather than progressing towards the future as is expected of the autonomous subject, she remains ‘stuck in the past’, refusing to self-right and instead expecting her ‘meal-ticket for life’.

Contracting Out: The Rise of Prenuptial Agreements The autonomy turn is reflected in the changed legal status of privately negotiated agreements, which reinforce the idea of the ideally restrained state. Prenuptial agreements allow couples to self-determine the financial implications of any future divorce, placing themselves outside the discretionary statutory regime and restricting rights to property that would otherwise form part of the matrimonial pot to be divided. The modern approach to them stands in stark contrast to their historical treatment. In Hyman v Hyman, Lord Atkin explained that prenuptial agreements were void for public policy reasons because they seek to oust the court’s jurisdiction to make financial orders. They were also accused of being incompatible with marriage’s lifelong nature, as they contemplate the possibility of divorce from the outset (see N

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v N (Jurisdiction) [1999] 2 FLR 745). In F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR, Thorpe J explained that he thought that prenuptial agreements would be “of very limited significance” (p. 66) to the judge’s exercise of discretion under the statute. However, the historical disapproval of prenuptial agreements gave way to a more permissive approach at the beginning of the twenty-first century. Judges began to acknowledge that, provided the agreement had been freely entered into, it should at least be given consideration by the judge as part of the discretionary exercise, as seen, for instance, in K v K (Ancillary Relief: Pre-Nuptial Agreement) [2003] 1 FLR 120, and Crossley v Crossley [2007] EWCA Civ 1491, where Thorpe LJ’s previous position in F v F had changed to the extent that he described the prenuptial agreement in that case as being “a factor of magnetic importance” (para 15). The new permissive approach to prenuptial agreements culminated in Radmacher v Granatino in 2010, where the Supreme Court upheld the provisions of an agreement that excluded the husband from making any claims in respect of his wife’s substantial inherited wealth. The Supreme Court confirmed that the terms of a prenuptial agreement freely entered into should be given effect “unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” (para 75). The majority judgement confirmed that “respect for individual autonomy” (para 78) was the guiding principle when it came to enforcement of prenuptial agreements. As the majority judges5 explained, “it would be paternalistic and patronising to override their agreement simply on the basis that the court knows best” (para 78). The shift in approach illustrates the increasing expectations of individualism within family law. Spouses are encouraged to individually draw up the financial parameters of their relationship, rather than relying on the state to determine the outcome. I have written elsewhere (Gordon-Bouvier 2020) that this newfound reverence for contractual agreements and private ordering is also representative of a new view of the institution of marriage. Under the modern view, marriage is regarded as having cast off its patriarchal past to make way for a union between autonomous individuals, who are treated as retaining their individualism throughout the relationship (Reece 2003). It recognises that marriage has moved on from a lifelong obligation towards emulating what Giddens terms the “pure relationship”, whereby the marriage is “continued only in so far as it is thought by both parties to deliver enough satisfaction for each individual to stay within it” (Giddens 1992, p. 58; see also Reece 2003). 5The majority consisted of Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Lord Brown, Lord Collins, and Lord Kerr.

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The promotion of private bargaining through prenuptial agreements assumes that the contracting parties possess the qualities of the autonomous subject, expressing self-interest, rationality, and free choice (Thompson 2015). Liberal theories advocate that, because the parties have the freedom and capacity to bargain, the state should facilitate and enforce their agreements (see Atiyah 1979). However, the autonomous subject is of course an unrealistic version of personhood that fails to appreciate the relational and institutional contexts in which we are all embedded—contexts that are not always marked by equality. As Thompson (2018, p. 618) argues, presumptions of rationality frequently overlook “the inevitable inequalities and hierarchies of family life that permeate the relationship and the decision-making process”. I explored the notion of intra-familial inequalities in Chapter 3, arguing that differences in economic status between a couple frequently manifest in broader and more subtle inequalities, making the prenup’s presumption that both parties possess free and equal bargaining power a deeply problematic one. The desirability of prenuptial agreements as a means of avoiding excessive state intrusion is inevitably viewed from the perspective of the economically superior spouse. As Margulies has argued, “prenuptial agreements…are about power and are invariably desired by the more powerful partner for the sole purpose of protecting that power from erosion” (Margulies 2003, p. 428). The prenuptial agreement can be understood as a tool that addresses the issues arising out of liberalism’s “productive/destructive relation with uncertainty” (Anderson 2010, p. 782). This refers to the artificial temporality that the restrained state imposes upon its subjects. On the one hand, liberal theories regard time as linear and constantly progressing towards an as-yetunknown future (but one that promises an improvement on the past) (see Finchett-Maddock 2018). On the other hand, the very fact of the future’s unknowability (a core component of universal vulnerability) presents risks and potential threats to the imagined autonomous subject—risks that must be limited in the present as far as is possible. Commenting on liberalism’s paradoxical relationship to the future, Anderson (2010, p. 782) explains that “[u]ncertainty is both threat and promise: both that which must be secured against and that which must be enabled”. According to neoliberal state policies, it becomes the individual rather than the state that bears full responsibility for safeguarding against future risks. The prenup promises to bring knowledge and certainty of the future so that the individual is not faced with unforeseen surprises that may interfere with autonomy at a later date. Notably, the prenup’s change in status also coincides with a rise in riskbased discourse surrounding marriage. In an era where marriage has become

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a temporally fragile union liable to future breakdown, the prenup is posited as a means of mediating this unpredictability—presenting an opportunity for individuals to reap the self-developmental and spiritual rewards of marriage, but without accepting the potential economic risks that the future may bring (Gordon-Bouvier 2020). The prenuptial agreement can be said to represent a form of “anticipatory action” (Anderson 2010) that can be taken in the present day to prevent bad surprises in the future and maintain the illusion of the autonomous liberal subject who is responsible for, and in control of, the future. The prenuptial agreement allows the inherently unknown future to be imagined through the eyes of the present, meaning that obligations can be determined in advance and then legally ‘fixed in time’ until divorce occurs. This renders obligations impervious to time’s passage, setting out unchangeable obligations at the start of the relationship. Temporally fixing obligations expressly fails to account for the inherent universal vulnerable condition. To be vulnerable is to be constantly susceptible to the occurrence of harm, including illness and accident, which may alter the previously anticipated life course. However, unless such intervening events are contemplated and provided for by the prenup, they lose the significance they would otherwise have had in determining financial provision, as the event of temporal fixing takes on paramount importance. The prenuptial agreement is symbolic of the liberal narrative that future uncertainty is capable of control through planning and calculation of risk (see Reith 2004). Yet, due to the future’s inherent unpredictability, genuine knowledge of what is to come can never be a reality, and what was imagined at the time of the agreement may not fit with the circumstances that exist at the point of dispute (von Benda-Beckmann 2014, p. 12). There are inherent problems with taking anticipatory action and imagining the future in the way that the prenuptial agreement demands. It involves a complex relationship between present and future—perhaps more complex than in other forms of contractual relationships—in that the future that is being contemplated in the agreement is one that neither party wants to occur and one that they often do not believe will occur. On this basis, prenuptial agreements are different in character to separation agreements that are made after the parties have already separated and divorce is expressly contemplated. Excessive optimism about a perceived remote future risk can be detrimental to parties entering into prenups (Van Lange and Rusbult 1995). Thompson (2016) has discussed the concept of “bounded rationality” (Baker and Emery 1993) whereby “parties are unrealistic about the prospect of divorce and consequently the likelihood of their prenup coming into effect”, arguing that “pressure to sign a prenup

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is more powerful when the non-moneyed spouse believes the agreement will never take effect” (Thompson 2016, p. 1241).

The Withdrawal of Access to Justice The third illustration of the autonomy turn is the steady reduction of state-supported means of access to justice to divorcing couples, which have been replaced with an expectation on parties to reach agreement without having recourse to the courts. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) involved a large-scale withdrawal of public funding for the majority of private family cases in England and Wales. Other than in cases that are considered to be ‘exceptional’, Legal Aid is now only available where the applicant can supply documentary evidence that there has been a recent history of domestic abuse within the relationship (Schedule 1, LASPO 2012). As Barlow et al.’s (2017) study of family dispute resolution found, the provision of state-funded legal representation has been replaced with the promotion of various forms of out-of-court dispute resolution, including mediation. The researchers noted that alternative dispute resolution is promoted as a universal and obvious good—a preferable option for attending court (Barlow et al. 2017). As Diduck (2014, p. 97) has argued, the state has attempted to give autonomy-based measures a “friendly face” by emphasising its respect for party agency and individual control over the legal process. By contrast, those who remain entitled to assistance under the new regime are frequently depicted as helpless victims, who are lacking in such agency and control (Brown 2012, cited in Diduck [2014]). The post-LASPO legal landscape has substantially increased the promotion of non-intervention policies, to such an extent that the state can be described as largely unconcerned not only during the marriage, but also when it breaks down. Reliance on private ordering and alternative dispute resolution allows the state to provide only the bare minimum in terms of upholding and endorsing privately negotiated settlements (Fineman 2008). The expectation of personal responsibility for resolving disputes also reinforces the norms that characterise the hypothetical invulnerable legal subject. Autonomy and rationality are viewed as the default, with a clear expectation on parties to be able to resolve their own disputes. The state’s retention of Legal Aid for the narrow category of relationships involving domestic violence demonstrates that assistance is only available if the claimant can fit into an exclusionary category of ‘deserving victim’. As Mant and Wallbank (2017, p. 630) argue, “the brightline rule approach to defining vulnerability is in stark contrast to the generally flexible and discretionary way in which family law has traditionally been

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governed”. Such deservingness, they argue, is measured through stereotypical conceptions of domestic abuse (Mant and Wallbank 2017). Thus, the autonomy turn has reinforced that the state’s conception of vulnerability as an exceptional, rather than universal, condition, for which the applicant must supply substantial evidence to demonstrate belonging. Those who fail to meet the threshold for vulnerability are regarded as ‘invulnerable’ in the sense that they are not thought to be in need of access to the court to resolve their disputes. Following LASPO, the state promotes a strong message that individuals need to bear personal responsibility for the adverse circumstances in which they find themselves. This also demonstrates disapproval of those who display evidence of vulnerability and dependency (Fineman 2004). As Mant and Wallbank (2017, p. 640) have noted, the initial Ministry of Justice proposals for withdrawing Legal Aid before LASPO was enacted were premised on the notion that “legal issues arising from litigants’ personal life choices are less likely than public law matters to be regarded as important enough to be eligible for legal aid”. Thus, the availability of state intervention has become directly linked to the applicant’s perceived degree of blameworthiness. Whereas the state conceives the (narrowly defined) domestic abuse victim as lacking in agency to the extent that she requires assistance to resolve the legal issues arising from her relationship breakdown, those falling outside the narrow category of victimhood are authors of their own misfortune. Relationship-generated disadvantage upon divorce is regarded as something lying firmly within the individual’s control rather than being an inevitability as a result of current state structures that encourage role specialisation. There is also a notably lower tolerance for a failure to comply with expectations of self-sufficiency. Whereas previously, the economically stronger party was required to share the blame for ‘unwise choices’, the state’s increasing restraint in these matters, coupled with an even stronger commitment to individualism, demonstrates that it expects the dependency-worker to retain full responsibility for any future hardships.

Conclusion In this chapter, I have considered the processes by which the family law framework seeks to reinforce the state’s expectation that its subjects conform to the ideal of the autonomous liberal subject. As I argued in Chapter 3, the theoretical distinction between the public and private spheres is a myth that conceals the state’s influence on the relations of its subjects. My aim in this

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chapter was to show how law and legal discourses are key contributors to the dependency-worker’s marginalisation and consequent relational vulnerability. I have examined the position of the formal (married or civilly partnered) family unit in this chapter, with an analysis of the unmarried family following in Chapter 5. Marriage is promoted by the state as the natural and ideal setting for rearing children (Diduck and Kaganas 2012). It represents the family in its idealised form, with other relationships always being judged against the marital family in order to gain legal or social acceptance (Brown 2019). Marriage, as it is defined and promoted by the state, also imposes gendered obligations on spouses, which, in the case of wives, comes with an expectation of performing dependency-work. In its adherence to nonintervention principles, family law is relatively uninterested in relational dynamics while the marriage subsists. Any attempt to redress any injustice or unfairness resulting from the marriage is confined to the aftermath of its breakdown. I have argued that the legal framework governing financial redistribution on divorce promotes the autonomous liberal ideal and thereby marginalises dependency-workers. The way that this has taken place has shifted over time. Whereas in the past, the law acted paternalistically to protect wives against the impact of their supposedly natural role specialisation, the tide has now turned towards a more explicit endorsement of individualistic autonomy and personal responsibility. The recent autonomy turn assumes that a divorcing spouse can attain economic self-sufficiency within a short time after divorce, even if her earning capacity has been compromised by undertaking dependency-work. Thus, the current framework is inadequate to redress the entrenched and long-lasting inequalities that arise as a result of role specialisation. The legal framework’s temporality exacerbates relational vulnerability. The point of intervention is only when the core conjugal relationship breaks down. Prior to this, law is unconcerned by unequal distributions of dependency-work. At the point of legal intervention, lip service is paid to the equal value of dependency-work. However, this is clearly an artificial conflation because society continues to view dependency-work as privatised and gendered and therefore upholding the social norms that construct it. There is little attempt to shift these boundaries, although the compensation-discourse at least seeks to recognise the temporal effects of performing dependencywork in terms of the impact on earning capacity. However, it seeks to frame dependency-work in terms of lost opportunities rather than seeing any inherent value in it.

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Bibliography Anderson, B. (2010). Preemption, Precaution, Preparedness: Anticipatory Action and Future Geographies. Progress in Human Geography, 34 (6), 777. Atiyah, P. (1979). The Rise and Fall of Freedom of Contract. New York: Oxford University Press. Bailey-Harris, R. (2001). Dividing the Assets on Family Breakdown: The Content of Fairness. Current Legal Problems, 54 (1), 533. Bailey-Harris, R. (2005). The Paradoxes of Principle and Pragmatism: Ancillary Relief in England and Wales. International Journal of Law, Policy and the Family, 19 (2), 229. Baker, L. A., & Emery, R. E. (1993). When Every Relationship Is Above Average. Law and Human Behavior, 17 (4), 439. Barlow, A. (2007). Configuration(s) of Unpaid Caregiving Within Current Legal Discourse in and Around the Family. Northern Ireland Legal Quarterly, 58(3), 251. Barlow, A., Hunter, R., Smithson, J., & Ewing, J. (2017). Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times. Basingstoke: Palgrave Macmillan. Bendall, C. (2014). Some Are More ‘Equal’ Than Others: Heteronormativity in the Post-White era of Financial Remedies. Journal of Social Welfare and Family Law, 36 (3), 260. Bendall, C. (2016). A ‘Divorce Blueprint’? The Use of Heteronormative Strategies in Addressing Economic Inequalities on Civil Partnership Dissolution. Canadian Journal of Law and Society, 31(2), 267. Brown, A. (2019). What Is the Family of Law? The Influence of the Nuclear Family. Oxford: Hart. Brown, K. (2012). Re-Moralising ‘Vulnerability’. People, Place & Policy, 6 (1), 41. Davies, M. (2011). Feminism and the Idea of Law. feminists@ law, 1(1). Davies, M. (2013). Law’s Truth and the Truth About Law: Interdisciplinary Refractions. In M. Davies & V. Munro (Eds.), The Ashgate Research Companion to Feminist Legal Theory. Farnham: Ashgate. Diduck, A. (2014). Autonomy and Vulnerability in Family Law: The Missing Link. In J. Wallbank & J. Herring (Eds.), Vulnerabilities, Care and Family Law. Abingdon: Routledge. Diduck, A., & Kaganas, F. (2012). Family Law, Gender and the State: Text, Cases and Materials. Oxford: Hart. Douglas, G. (2018). Obligation and Commitment in Family Law. Oxford: Hart. Eekelaar, J. (1984). Family Law and Social Policy. London: Weidenfeld and Nicolson. Finchett-Maddock, L. (2018). Nonlinearity, Autonomy and Resistant Law. In S. Wheatley & T. Webb (Eds.), Complexity Theory & Law: Mapping an Emergent Jurisprudence. Abingdon: Routledge.

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Fineman, M. A. (2001). Why Marriage? Virginia Journal of Social Policy & the Law, 9 (1), 239. Fineman, M. A. (2004). The Autonomy Myth: A Theory of Dependency. New York: The New Press. Fineman, M. A. (2008). The Vulnerable Subject: Anchoring Equality in the Human Condition. Yale JL & Feminism, 20 (1), 1. Fineman, M. A. (2010). The Vulnerable Subject and the Responsive State. Emory Law Journal, 60 (1), 251. Fineman, M. A. (2015). Understanding Vulnerability Theory. Available at http://new legalrealism.org/2015/11/30/fineman-on-vulnerability-and-law/. Last Accessed 2 August 2020. Fineman, M. A. (2017). Vulnerability and Inevitable Inequality. Oslo Law Review, 4 (3), 133. Fox-O’Mahony, L. (2014). Property Outsiders and the Hidden Politics of Doctrinalism. Current Legal Problems, 67 (1), 409. Giddens, A. (1992). The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies. Cambridge: Polity Press. Gordon-Bouvier, E. (2020). The Open Future: Analysing the Temporality of Autonomy in Family Law. Child and Family Law Quarterly, 32(1), 75. Green, L. (1998). Rights of Exit. Legal Theory, 4 (2), 168. Joseph, J. (2013). Resilience as Embedded Neoliberalism: A Governmentality Approach. Resilience, 1(1), 38. Lincoln, B. (1989). Discourse and the Construction of Society. Oxford: Oxford University Press. Mant, J., & Wallbank, J. (2017). The Mysterious Case of Disappearing Family Law and the Shrinking Vulnerable Subject: The Shifting Sands of Family Law’s Jurisdiction. Social & Legal Studies, 26 (5), 629. Margulies, S. (2003). The Psychology of Prenuptial Agreements. Journal of Psychiatry & Law, 31(1), 415. Miles, J., & Hitchings, E. (2018). Financial Remedy Outcomes on Divorce in England and Wales: Not a ‘Meal Ticket for Life’. Australian Journal of Family Law, 31(1–2), 43. Naffine, N. (1998). The Legal Structure of Self-Ownership: Or the Self-Possessed Man and the Woman Possessed. Journal of Law and Society, 25 (2), 193. Nedelsky, J. (2011). Law’s Relations: A Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. O’Donovan, K. (1985). Sexual Divisions in Law. London: Weidenfeld and Nicolson. Olsen, F. E. (1984). The Myth of State Intervention in the Family. University of Michigan Journal of Law Reform, 18, 835. Reece, H. (2003). Divorcing Responsibly. Oxford: Hart. Reith, G. (2004). Uncertain Times: The Notion of ‘Risk’ and the Development of Modernity. Time & Society, 13(2–3), 383. Rowthorn, R. (2002). Marriage as a Signal. In R. Rowthorn & A. Dnes (Eds.), Law and Economics of Marriage and Divorce. Cambridge: Cambridge University Press.

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Thompson, S. (2015). Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice. Oxford: Hart. Thompson, S. (2016). In Defence of the ‘Gold-Digger’. Onati Socio-Legal Studies, 6 (6), 1225. Thompson, S. (2018). Feminist Relational Contract Theory: A New Model for Family Property Agreements. Journal of Law and Society, 45 (4), 617. Thompson, S. (2019). A Millstone Around the Neck? Stereotypes About Wives and Myths About Divorce. Northern Ireland Legal Quarterly, 70 (2), 179. Van Lange, P., & Rusbult, C. (1995). My Relationship Is Better Than—And Not as Bad as-Yours Is: The Perception of Superiority in Close Relationships. Personality and Social Psychology Bulletin, 21(1), 32. von Benda-Beckmann, K. (2014). Trust and the Temporalities of Law. The Journal of Legal Pluralism and Unofficial Law, 46 (1), 1.

5 Vulnerability, Law, and the Unmarried Family

In this chapter, I examine the legal status of dependency-work when performed in the unmarried family context. There are many overlaps with this and my analysis of the married family in Chapter 4. In both cases, the governing legal framework reinforces the ideal of the autonomous liberal subject, marginalising and stigmatising those who cannot conform to the ideal. However, as I argue in this chapter, English law draws considerable distinctions between married and unmarried families, meaning that unmarried dependency-workers are particularly susceptible to economic, psychological, and spatial harms. This is despite the fact that, regardless of whether the adult relationship has been legally formalised, the state expects all families to assume primary responsibility for dependency-work, while simultaneously remaining self-sufficient. English law is notable for providing very little legal protection for cohabiting couples, even where a relationship has generated considerable dependencies as a result of role specialisation. Cohabitants must rely on the ordinary law of property and trusts to resolve any post-separation disputes over property. Here, the legal framework is heavily oriented around the self-interested autonomous subject who enters into arms-length, dispassionate agreements with other individuals rather than being attuned to the complexities of family relationships (Miles 2003; Halliwell 1991). Yet, as I argue in this chapter, the case law is nonetheless heavily imbued with references to the conjugal family and its gendered roles. Judges, in seeking to interpret the parties’ intentions with regard to their property, frequently draw on assumptions about men’s and women’s place within the family unit. From this emerges a discernible difference in approach between male and female claimants that struggles to © The Author(s) 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7_5

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be explained merely as a consequence of distinct factual scenarios. It suggests that women’s dependency-work is often explained as being motivated by altruism and love rather than an intention to acquire proprietary rights in the home. Conversely, men find that their contributions are more readily explained as having been financially motivated.

Dependency-Work in Cohabiting Relationships: The Legal Framework As there exists no statutory regime that imposes financial obligations between unmarried couples, either during the relationship or upon its breakdown, disputes between former cohabitants usually concern the establishment of equitable proprietary rights in the family home. This requires the claimant to demonstrate the existence of a constructive trust or, less frequently, to rely on the doctrine of proprietary estoppel. Establishing a constructive trust of the family home requires evidence of a common intention between the parties to share beneficial ownership, which is subsequently given effect by the court (see Gissing v Gissing [1971] AC 886). The trust arises in one of two scenarios. In the first, only one cohabitant holds legal title to the family home and the other seeks to assert a beneficial interest. In the second, legal title is jointly held, but the parties disagree over the size of their respective beneficial shares.

Sole Ownership Where title is solely owned, the claimant can establish common intention in one of two ways. First, she can show the existence of an express agreement or discussion relating to beneficial ownership of the home, which she subsequently relies on to her detriment (Lloyds Bank v Rosset [1991] 1 AC 107). Detrimental reliance can comprise a range of actions, including making financial contributions to the household (Grant v Edwards [1986] Ch 638), performing unpaid work in a family business (Hammond v Mitchell [1991] 1 WLR 1127), or giving up the right to purchase a council property at a discount (Thompson v Hurst [2012] EWCA 1752). Crucially, the claimant must show that she would not have embarked on the conduct in question had it not been for the agreement that she would have an interest in the home (Grant v Edwards, p. 648). Although performing dependency-work could conceivably constitute detrimental reliance, the case law suggests that such

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work must be “out of the ordinary” (Thomson v Humphrey [2009] EWHC 3576, para 44), and not motivated by other factors such as natural affection. Second, where there is no evidence of an express agreement, the court may infer the common intention from the parties’ conduct. The highest authority on sole ownership cases, Lloyds Bank v Rosset, adopted a restrictive approach to inferring intention, as seen in Lord Bridge’s comment that he was “extremely doubtful whether anything less than direct contributions to the purchase price by the partner who is not the legal owner” (p. 133) would suffice in order for the court to infer that there was a common intention. This would thus exclude those seeking to rely solely on having performed dependency-work as evidence of a common intention (as occurred in Burns v Burns [1984] Ch 317). In more recent cases, including Stack v Dowden [2007] UKHL 17, and Abbott v Abbott [2007] UKPC 53, the Supreme Court and Privy Council, respectively, made obiter suggestions that the approach Rosset is no longer good law and that the test for inferring intention should be a less stringent one that takes account of the whole course of dealings between the parties. However, it is unclear precisely to what extent the law has changed, bearing in mind that Rosset has not been expressly overruled (for discussion, see Sloan 2015). Additionally, sole ownership cases have been interpreted inconsistently by the lower courts, with some expressly relying on Rosset and the presence or absence of direct contributions (as in Thomson v Humphrey), and others taking a considerably more holistic approach to divining common intention (see Culliford and Another v Thorpe [2018] EWHC 426). However, despite the patchy evidence of a more progressive stance, there is no judicial authority that has found a common intention where the claimant’s contributions consisted entirely of dependency-work.

Joint Ownership Where the legal title is held jointly, the court’s task is “to ascertain the parties’ shared intentions” (Stack v Dowden, para 60) about their beneficial ownership. Traditionally, joint ownership disputes would have been resolved through reference to the presumption of resulting trust (whereby the parties’ beneficial shares are assumed to be commensurate with their respective financial contributions). However, in recent years, the courts have confirmed that the presumption of resulting trust is inappropriate in the ‘domestic context’, where the courts will instead presume (in the absence of evidence to the contrary) that the parties intended to hold the beneficial interest in equal shares (Stack v Dowden, para 69). The domestic context does not appear to be limited to conjugal relationships and the presumption of equal shares

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applies wherever the parties have used the property in question as their home (see Adekunle v Ritchie [2007] 2 P&CR DG 20). However, it is clear that the nature of the parties’ relationship will affect the inferences the court can draw as to their intentions, with a greater likelihood that unequal contributions will point to an intention of unequal shares where the parties are not in an intimate relationship (Gallarotti v Sebastianelli [2012] EWCA Civ 865). The approach in Stack v Dowden has been described by Gardner and Davidson (2012, p. 185) as introducing an element of communitarianism into the legal framework and being more attuned to the realities of family life. Significantly, Stack expressly recognises that unequal financial contributions are an ordinary feature of family life and do not necessarily point to an intention to share otherwise than equally. Therefore, in the case of joint ownership at least, there has been a distinct softening of the previously rigid property law principles (see Hayward 2012). Subsequently, in Jones v Kernott [2011] UKSC 53 which affirmed the approach in Stack, the Supreme Court also commented that “living together is an exercise in give and take” and that “who pays for what in the home has to be seen in the wider context of their overall relationship” (para 3). There is some (albeit limited) reference to childcare and looking after the home in Stack, where Baroness Hale discusses the relevance of “the nature of the parties’ relationship” and “whether they had children for whom they both had responsibility to provide a home” (para 69). To an extent, this demonstrates a change in approach that recognises the potential relevance of dependency-work to the question of proprietary rights and introduces references to family life in a jurisprudence traditionally focused on “hard-nosed property rights” (Lord Browne-Wilkinson in Foskett v McKeown [2001] 1 AC 102, p. 109). However, this falls far short of a judicial declaration that dependency-work is equally valuable to breadwinning (as the courts have done where the parties are married). Thus, even in joint ownership cases, the law does not address relationship-generated disadvantages (which often call for an unequal division of family assets to meet needs). A dependencyworker who is restricted to half the available economic resources could still find herself in considerable present and future financial hardship, reflecting Baroness Hale’s comments in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, that “[g]iving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the caregiver with children” (para 136).

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Proprietary Estoppel Finally, the doctrine of proprietary estoppel occupies a residuary role in cohabitants’ disputes over the home. Proprietary estoppel has significant overlaps with the common intention constructive trust. To succeed, the claimant must show that the legal owner made an assurance or representation to the effect that the claimant was to have some form of proprietary interest in the land (Thorner v Major [2009] UKHL 18). The claimant must then demonstrate that she relied on the assurance to her detriment. The case law illustrates that detrimental reliance can take the form of performing dependency-work. For example, in Thorner v Major (which I discuss in more detail below), the claimant provided care and personal services to his elderly second cousin on the understanding that he would inherit his farm. Greasley v Cooke [1980] 3 All ER 710, Wayling v Jones [1995] 2 FLR 1029 and Jennings v Rice [2002] EWCA Civ 159 also involved claimants who provided personal care in reliance on a future financial reward. In addition to the assurance and reliance, the court must be satisfied that it would be unconscionable not to grant relief, to the extent that to deny relief would, “shock the conscience of the court” (Cobbe v Yeoman’s Row [2008] UKHL 18, para 92). Although proprietary estoppel shares ground with the constructive trust, the former is less remedially certain than the latter, as the court merely has to do the minimum to satisfy the equity raised by the estoppel, which could include granting a personal rather than proprietary remedy (Crabb v Arun District Council [1976] Ch 179). However, it can provide a remedy where the assurance in question relates to making future provision for the claimant via a will (which would indicate that there is no current beneficial ownership) (see Thorner v Major, Davies and Another v Davies [2016] EWCA Civ 463).

The Temporality of Legal Intervention As I argued in Chapter 4, the temporality of legal intervention can directly contribute to the harms suffered by dependency-workers. In the case of unmarried dependency-workers, the temporal factors are even more problematic than for their married counterparts. Property law, in contrast to the regime under the Matrimonial Causes Act 1973 (which explicitly requires the court to consider the parties’ future needs), is retrospective in nature (Miles 2003). Both constructive trust and proprietary estoppel claims involve a judicial survey of the parties’ relationship, evaluating their contributions and conduct for evidence of an assurance or common intention. The court

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is unconcerned with the future needs and potential hardships that flow from the relationship, deeming these to lie beyond its scope (see Curran v Collins [2013] EWCA Civ 382; Burns v Burns). The property law framework strongly reinforces the liberal notion that the individual possesses power over time. Property law allows individual rights to property be fixed through registration or formal agreements, rendering them largely impervious to the occurrence of future events (in a similar way to the prenuptial agreement discussed in Chapter 4). Keenan (2017) has described the system of land registration as a “time machine”, emphasising the power that is exercised through its temporal ordering of interests in land, excluding those persons that do not conform to the required formalities of ownership. This exclusion particularly affects unmarried dependency-workers, who frequently rely on more informal, relational connections to the home in order to establish an interest. Property law’s disregard for future needs and its creation of relatively narrow categories by which ownership can be established places unmarried dependency-workers in a precarious position if the relationship breaks down. Difficulties in establishing a legal relationship to the home serve to exacerbate the spatial vulnerability discussed in Chapter 3, whereby dependency-workers have reduced opportunities in terms of obtaining a secure home that can offer future protection and resilience. Thus, the legal framework places unmarried dependency-workers at high levels of risk of spatial harms.

The Commitment to Autonomy The property law framework governing the unmarried family is heavily underpinned by principles that reflect the primacy of individualism, state restraint, and the autonomous liberal subject. In the liberal legal and political tradition, private property is regarded as symbolic of individual autonomy, a necessary feature of self-sufficiency, and providing a boundary of protection against state intervention (Singer 2000, p. 11). Private property comes to represent the physical divide between the autonomous subject’s inner realm and the province of state power. Within this vision, ownership is also depicted as constitutive of the self and a necessary precondition for autonomy, seen in Waldron’s (1988, p. 329) argument that “[p]eople need private property for the development and exercise of their liberty”. Private ownership confers political power and affirms an individual’s citizenship status, with suffrage-rights historically only available to (male) landowners (Davies 2007). Although political rights are no longer directly dependent on land ownership,

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the latter nonetheless continues to be associated with increased social status, denoting “standing, responsibility and self-control” (Blomley 2005, p. 126). Private property’s perceived power is evident in the constructive trust framework outlined above. It is reiterated that the court’s role is limited to “identifying the true beneficial owner or owners, and the size of their beneficial interests” (see Stack v Dowden, para 37) rather than engaging in a judicial redistribution exercise. The requirement for intention reflects the liberal notion that consent is the only legitimate basis upon which the court is able to interfere with the owner’s property rights (Rotherham 2002, p. 197). As Lord Morris stressed in Gissing v Gissing, the court had no power to interfere with property rights due to “the mere circumstance that harmony has been replaced by discord” (p. 898). Although the liberal theoretical perspective does accept that property rights can never be absolute (Rotherham 2002, p. 9), it nonetheless views the individual owner’s right as coming before any appeals to the public good or social goals such as equal distribution, relationship, or need (see Nozick 1974). This position operates to exclude those whose claim to ownership does not fall into the narrow recognised categories of legitimate acquisition (such as payment of the mortgage or purchase price, as illustrated in Rosset ), but is instead based on a broader moral assertion that they should be entitled to the home by virtue of their relationship with the owner or the unpaid dependency-work they have carried out during the relationship.

Property and the Restrained State By depicting property rights as tantamount to inviolable, law’s socially constructed nature remains unchallenged (Hudson 2003). In reality, all systems of property law, whatever form they take, inevitably depend on the state for their effective function and enforcement (Davies 2007, p. 16). Rights do not arise in a state of nature; rather, the state determines the ways that they are conferred on individuals and how resources are distributed across populations. The liberal conceptions of property underpinning the constructive trust framework mask the wider social context in which the law operates. Property law (more so than other areas of law) is presented as a neutral, rational and coherent set of rules capable of existence and enforcement without reference to political motivations (Fox-O’Mahony 2014). In reality, property is inherently political because it empowers certain individuals and privileges certain behaviours, while directly excluding and devaluing others (see Keenan 2017). Not all citizens have an equal opportunity to acquire property and some will never acquire it, as I discussed in Chapter 3 in the context of spatial

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vulnerability. Yet, the state maintains the illusion that ownership is something available to all, and that the fact that not all citizens are owners is due to individual failure to become self-sufficient. The state-perpetuated myth of inviolable property rights upholds principles of formal equality before the law (Cotterrell 1987, p. 82). Because the discourse of property denies the state’s political interest in determining who can be an owner and who cannot, it also denies the significant power that is exercised by owners over non-owners. Crucially, legal ownership includes a right to exclude others and therefore its force inevitably depends on the fact that others are not owners. Yet, the discourse is framed in such a way as to obscure this imbalance and its broader societal implications. The unequal distribution of resources is something deemed to lie beyond the concern of property law’s search for order and rationality. In fact, any appeals to social justice are viewed as a threat to property law’s doctrinal purity (Rotherham 2002, p. 189). The inviolability principle also shapes the parameters of disputes involving dependency-work contributions. In sole ownership cases, the strength afforded to the legal title operates as a hurdle over which the cohabiting dependency-worker must jump in order to show that she has a right to the family home. She starts on the back foot, having to convince the court that this is an unusual or exceptional case, where the legal title should be interfered with and where her contributions are referable to the property rather than the relationship. She is frequently depicted as a threat, as someone “seeking to claim a windfall against the rightful owner” (Fox-O’Mahony 2014, p. 444), unless she can establish that she too is an owner and therefore deserving of legal protection. State restraint is evident in the foundational principle that, in English law, the constructive trust is viewed as an institution rather than a remedy (as is the case in several other jurisdictions). Rather than being a solution imposed upon parties in appropriate circumstances, the institutional trust upholds the parties’ intention to create a trust. However, the institutional constructive trust depends on a degree of legal fiction to explain its operation. It ostensibly comes into being when the parties form an intention to share the beneficial interest (or perform the acts from which an intention can be inferred). This is even though it is only ‘officially’ recognised at a later stage, when the matter comes before the court (Halliwell 1991, p. 519). By contrast, the remedial constructive trust enables judicial discretion to grant de novo property rights in satisfaction of a wrong. This involves the state taking a more active role. For example, the constructive trust in Canada responds to the defendant’s unjust enrichment at the claimant’s expense. Once unjust

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enrichment has been established, the court has a discretion as to whether to impose a constructive trust; it does not arise as of right. La Forest J explained in Lac Minerals v Corona [1989] 2 SCR 574 that “[t]he constructive trust awards a right in property and should only be awarded if there is reason to grant to the plaintiff the additional rights that flow from recognition of a right of property” (p. 678). Similarly, in Australia, the constructive trust is imposed where it would be unconscionable to deny the claimant relief (see Muschinski v Dodds [1985] 160 CLR 583, Baumgartner v Baumgartner [1967] 164 CLR 137; and West v Mead [2003] NSWSC 161). Both these jurisdictions acknowledge that, in the case of the constructive trust, property rights flow from their judicial creation rather than arising automatically from an agreement between the parties. By contrast, English law firmly maintains that the judicial role is limited to identifying and enforcing existing property rights, which is also used as an explanation for why judges cannot be guided by general principles of justice and fairness when dealing with cases involving unmarried couples (see, e.g., Burns v Burns). Principles of state restraint are also prevalent in the dominant view of cohabitation as a relationship that operates outside the boundaries of law. Political debates around cohabitation frequently assume that any relationshipgenerated disadvantages arise due to private choices made by the parties (Gordon-Bouvier 2019b). These include the decision not to get married, not to enter into a deed of trust to secure their respective property rights, and the decision to undertake role specialisation within the relationship (see Barlow and Duncan 2000a, b). Debates over legal reform have painted state restraint as a positive factor, again framed in the discourse of individual choice and autonomy. A common argument is that it would be inappropriate to extend the legal regime applicable to spouses (even for functionally identical relationships) because this would interfere with the parties’ ‘choice’ to be unregulated. For example, Deech has argued that: [The Cohabitation Bill] … puts a widespread choice of lifestyle—cohabitation—into lockdown. If it were to be enacted …cohabiting couples…will find that they are snared unaware in a trap of laws from which there is no escape, save for the opting-out provisions of the Bill. Almost the entire panoply of marriage law is to be lowered on to them by the Bill once they have spent two years cohabiting—two years is the average length of a cohabitation—or if they are parents of a child. People often use the phrase “bedroom tax” but, if enacted, this Bill would be the real bedroom tax: share your bedroom and you will be taxed for ever more. (Baroness Deech, Hansard HL Deb, vol 757, col 2072, 12 December 2014 emphasis added)

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Here, Deech draws heavily on principles of state restraint, emphasising the apparent tyranny of allowing the state to impose unchosen obligations on cohabitants. She describes cohabitation as a lifestyle choice, one that is freely and openly chosen by those who wish to escape the legal paternalism of marriage. She also positions individual freedoms as being at constant threat from an oppressive state, thereby justifying the current lack of legal protections for the informal family.

Emotional and Rational Voices: Conflicting Legal Narratives In this section, I analyse the legal discourse in the cohabitation cases in more depth. Sarmas (1993, p. 702) has argued that “the process of judicial adjudication is viewable not as the application of objective rules to objective facts, but as the adoption of a particular story to resolve a case” (emphasis added). Delgado (1989, p. 2470) has also noted that, “[s]tories make us believe that the way things are is inevitable… Alternative visions of reality are not explored, or, if they are, rejected as extreme or implausible”. Drawing on this idea of legal storytelling, I aim to illuminate below how the foundational principle of individualistic autonomy can be viewed as a storyline whose function is to exclude the dependency-worker from the legal framework, but which simultaneously denies doing so. Close attention to the judicial language employed in cohabitation disputes reveals that the imagined autonomous liberal subject features heavily in the case law, speaking in a language that is logical, neutral, and unemotional. This rational voice has the power to sanitise disputes that, for the parties, may be messy and fraught with emotion. This dominant narrative is reinforced in the case law and it informs the way the judiciary interprets the parties’ behaviour. As well as dominant legal stories that reinforce legal myths, the legal framework also contains what Delgado (1989, p. 2414) terms “counterstories”, which provide an alternative to dominant stories and represent the voices of those that are marginalised by the mainstream ideology. I argue that where the dependency-worker appears in the legal framework, it is in the forms of a counterstory, which reinforces her non-compliance with the autonomous ideal. In the cohabitation framework, disputes are inevitably interpreted from the viewpoint of the dominant voice—the autonomous liberal subject who makes decisions based on commercial self-interest, unrestrained by relational or emotional concerns. The liberal subject is able to freely enter into bargains

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that are then upheld by law. By contrast, dependency-workers’ counterstories are often framed in an ‘emotional voice’. While the rational voice represents the legal subject’s ‘public self ’, the emotional voice is one who has allowed the private to spill over into the public. It is unable to regulate itself and speak in law’s prescribed code and is therefore marginalised. In Geary v Rankine [2012] EWCA Civ 555, Mrs Geary’s counterstory was recounted through the snippets of her witness evidence included in the judgement. The parties had been together for 19 years and had a child together. Part of Mrs Geary’s case was that she alleged that the respondent had been financially controlling towards her, refusing to share the profits of the business that they both worked in. In her evidence, she said that: Throughout our relationship the Respondent was mean with money and reluctant to allow me to spend […] If I asked the Respondent for money to spend on myself other than small amounts, there would always be an argument and he would become angry so I eventually did not ask. (Geary v Rankine, para 7)

The emotional nature of this account is evident, with Mrs Geary referring both to Mr Rankine’s anger towards her and his meanness in relation to money. That Mrs Geary viewed and described herself in terms of her relational connections, particularly her role as a mother, and took a relational approach to the case can also be seen in her statement that “[a]s the years went by, I kept asking him what security he was going to provide for me and my son should anything happen to him” (para 8). Mr Rankine’s witness evidence was not directly cited in the judgement. However, it appeared that he spoke with the same rational, unemotional voice as the court did. He had consistently refused to put the business and the investment property in joint names. He had exhibited individualistic, market-based behaviour during the relationship through his desire to protect his own business interests rather than share with Mrs Geary. His refusal to relinquish control over his own finances worked in his favour. Responding directly to the allegation that Mr Rankine had been controlling and refused to share, Lewison LJ thought that “those points to my mind contradict any conclusion that [the claimant] had an entitlement to a share in profits of the business” (para 13). Therefore, the only relevance of what could legitimately be described as economic abuse of one party by another was to confirm that there was no intention to share. The fact that Mrs Geary was in a position without leverage, concerned about her own uncertain future and that of her child, was not relevant to this inquiry. The analysis of the counterstory in Geary reveals that part of Mrs Geary’s problem was that she framed her case in the wrong language. She mistakenly

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believed her own position within the relationship (with regard to securing her own and her child’s financial future) to be relevant to the issue of ownership. She also thought it relevant that she had not been able to persuade Mr Rankine to put the property in joint names because of the way that he treated her. However, she discovered that neither of these issues belonged in the rational, unemotional domain of property law. By contrast, Mr Rankine’s self-interested conduct chimed with law’s neutral language. Another counterstory told in the emotional voice can be seen in Curran v Collins [2015] EWCA Civ 404. Here, the parties had been in a relationship off and on for over twenty years, yet all assets were held in Mr Collins’ name. It is clear from the judgement that Ms Curran was aware of her marginalised status and described this in emotional terms. In his judgement granting leave to appeal (Curran v Collins [2013]), Toulson LJ explained that “[s]he describes herself as “a nobody”, but with a profound sense that what has happened is not just” and that “the result of the judgment [at first instance] is to make her feel utterly worthless” (para 13). In the Court of Appeal judgement, Ms Curran’s inability to be detached went against her. Her evidence was criticised because “[s]he had strong emotions causing her to be overemphatic” (Curran v Collins [2015], para 27). The trial judge had also noted her “loose use of language” when giving her evidence (Curran v Collins [2015], para 24). An example given was that she had said that she had “done all the paperwork” (Curran v Collins [2015], para 16) for the parties’ business, when in fact she had not done the accounts, only some insurance forms. This was used as evidence of her unreliability as a witness. What was particularly notable in this case was that the defendant, Mr Collins, was found to have lied on oath about his financial affairs and to have given inconsistent accounts, yet his evidence was still preferred as more reliable because he did not exhibit high emotions and was able to be dispassionate and “capable of being very calculating” (Curran v Collins [2015], para 17) when recalling events in the parties’ relationship. As was the case in Geary, Mr Collins’ direct voice in the form of his witness evidence was absent from the judgement, but it was clear that it was the rational, logical one that chimed with that of the court. Law’s “linguistic code” (Delgado 1989) acts as a lens of neutrality and rationality, through which actions and events are viewed. It has a transformative effect in terms of being able to change the significance of a particular interaction by infusing it with legal meaning. This legal language can then operate to silence other accounts of the same event, which are told in a different, more personal, language. Those that can speak in the dispassionate and commercial language of the court are inevitably advantaged. However,

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the commercial often bears little semblance to the parties’ relationship, as seen in Smith v Bottomley [2013] EWCA Civ 953, another sole ownership dispute. Here, the property in question was owned by a limited company (of which Mr Bottomley was the sole shareholder). His argument was that any assurances that he gave to Ms Smith as to making provision for her were irrelevant because he was not the legal owner. The relational account of the interactions was seen in Ms Smith’s evidence that “he said everything we have is 50/50; he did not go into detail. The company was Mr Bottomley” (para 14). However, the court’s strict reliance on the separation between Mr Bottomley and his company is evident where Sales J explained that: [U]nless it can be said that the Company shared responsibility with Mr Bottomley for the relevant promise regarding ownership of the Barn and that Ms Smith relied to her detriment in a serious way upon such promise by the Company, there is no good ground on which it can be said that Ms Smith has the benefit of an equitable interest. (Smith v Bottomley, para 57)

The use of the legal fiction of separate corporate personality in the intimate relationship context demonstrates the inherent conflict between the commercial and the personal. The corporate subject in Smith was one that was not even human, yet the authority that it was afforded allowed it to extinguish Ms Smith’s claim to ownership. The reluctance of the court to pierce the corporate veil furthermore demonstrates law’s preference for abstract rules and certainty over relationality. It also highlights the extent to which economically stronger individuals are permitted to hide behind artificial and legally constructed entities to avoid individual responsibility.

The Private Family’s Influence: Gender and Sentimentality Despite its claim to objectivity, the property law framework governing cohabitation disputes reinforces the gendered roles that constitute the private conjugal family. In this section, I argue that judges draw heavily on gendered conceptions of dependency-work and the existence of a ‘gender-contract’ (Fudge 2005; Pateman 1988) when interpreting apparently neutral property law rules. This is particularly so in sole ownership cases, where the claimant faces a substantial initial hurdle in establishing that the beneficial ownership should be otherwise than as indicated by the legal title. A discourse analysis of the case law reveals that judges frequently regard dependency-work as the responsibility of the private conjugal family and

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specifically its female members. This mirrors core liberal theoretical principles, which regard the family as being governed by principles of affection and self-sacrifice rather than the self-interest that characterises the public sphere. For example, Professor Unger (1956, p. 97) argued that “the family circle differs from the market place in that it is not the setting for bargaining but for exchanging gifts and gratuitous services”. Illustrating this, judges in the trusts and estoppel cases frequently characterise dependency-work as altruistic, particularly when it is performed by women, whose imagined domesticity carries with it an expectation of self-sacrifice. Female roles within the private family, most notably that of wife (which is also applied to cohabitants in the sense that cohabitation is judged according to its marriagelike qualities [Brown 2019]), are based around the performance of unpaid dependency-work, caring for children, other dependents, and looking after the home. In legal, political, and societal discourses, women (whether married or unmarried) are depicted as nurturers, possessing the necessarily qualities and temperament to undertake the work of looking after others (MacRae 1995).

Women’s Work: A Labour of Love Female claimants can struggle to convince the court that they had economic motivations for performing dependency-work. Their intention is often deemed to be relational instead; referable to the gendered roles of the private family. For example, in Thomson v Humphrey, over the course of their lengthy relationship, Ms Thompson had undertaken a range of domestic work, including looking after the defendant’s elderly mother until she went into a retirement home. Ms Thompson argued that she had performed this work without compensation and that she would not have done so did she not think that the Mr Humphrey would make some financial provision for her in the form of a share in the home. However, Warren J dismissed this argument, reasoning that: There is absolutely nothing to link this conduct with the fact, if it be a fact, or with an understanding by the claimant that she had an interest in [the property]. The reason she looked after the defendant’s mother was surely because she lived with the defendant and did this because of her relationship with him and perhaps, for all I know, and this is pure speculation, because she got on with and liked the defendant’s mother and did it for her. (Thompson v Humphrey, para 43)

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The reference to both affection and to the parties’ relationship is telling. Affection and altruism is confidently stated to be the primary motivation for the claimant’s contribution, although Warren J admits that this is “pure speculation” (para 43). It displays an expectation of female altruism within the private family with Ms Thomson being expected to perform unpaid work as part of her relational role, not only for her male partner, but also his family members. The suggestion from Warren J’s words is also that motivation for caring for others must be either affection or monetary gain; there is no attempt made here to reconcile the two. It suggests discomfort at the idea that women in heterosexual relationships should expect compensation for their work. This betrays a belief that market-based behaviour is separate and incompatible with that expected within the family. Similar judicial reasoning can be seen in the bankruptcy case Rubin v Dweck [2012] BPIR 854, which involved a wife’s request that the family home be transferred into her name to reflect the financial sacrifice she had made by repaying some of her husband’s debts. The judge hearing the case remarked that this “had the potential to present a mercenary approach…which would not fit easily into the context of a loving family” (para 48). A further example of expectations of female altruism can be seen in the estoppel case Coombes v Smith [1986] 1 WLR 808. Here, the claimant relied on the fact that she had borne and cared for the defendant’s child, giving up her own prospects of paid employment. However, as the defendant’s counsel argued in submissions, “this is simply a case of a woman being housed by a man over a number of years, and bearing his child. …there is nothing exceptional in this case at all” (p. 817). The judge, Jonathan Parker QC, agreed with this. As he noted: It would be wholly unreal, to put it mildly, to find…that the plaintiff allowed herself to become pregnant by the defendant in reliance on some mistaken belief as to her legal rights. She allowed herself to become pregnant because she wished to live with the defendant and to bear his child. (p. 819)

The choice of words that Ms Coombes “allowed herself to become pregnant”, with its moral overtones of disapproval, is an interesting one because it hints that she is regarded as responsible for her own misfortune. The reference to exceptionality by the defendant’s counsel reiterates the extent that women’s relational roles are clearly demarcated within legal discourse. If they seek anything more in the form of property rights in the home, they must show that their contributions are sufficient to take them outside the paradigm of the private conjugal family.

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Female Domesticity Several of the constructive trust and estoppel cases involve claimants relying on unpaid work as evidence of a common intention to share ownership. As I have argued elsewhere (Gordon-Bouvier 2019a), the way that the courts perceive this work and its value illustrates adherence to an ideology of female domesticity, whereby women are expected to perform domestic work as part of their relational role. The ideology also draws a distinction between the types of work that are deemed appropriate for men and women, respectively. Typically ‘male’ work consists of construction and ‘handyman’ work, including external repairs and home improvements (see Gorman-Murray 2014), whereas typically ‘female’ work is focused on the home’s interior, primarily through ensuring the comfort of its occupants through decorating, cleaning, cooking, and laundry (Young 2005). The ideological perception of different kinds of work related to the home is reflected in its gendered distribution, even in an era of supposed equality. In areas such as building and construction, women’s presence remains negligible (Davies 2014), whereas, in heterosexual couples, women still perform more daily household chores than men (McMunn et al. 2020). The visibility and perceived social value of men’s work differs from that typically associated with women. On the whole, women do not build; their work tends to be focused on preserving and maintaining what has already been constructed. Yet, construction assumes far greater social and legal status than maintaining the home’s interior. Indeed, within liberal philosophical theories, building is viewed as a fundamental component of personhood, establishing the individual’s position in the world, and shaping the landscape. Young, critiquing Heidegger’s work on ‘dwelling’ (Heidegger 1971), has noted that: Heidegger says that dwelling is man’s mode of being. We dwell by making the places and things that structure and house our activities. These places and things establish relations among each other, between themselves and dwellers, and between dwellers and the surrounding environment…However, Heidegger points out that building in the sense of preserving and nurturing is not making anything. (Young 2005, p. 4)

Housework, under Heidegger’s definition, is viewed as a passive activity, simply restoring what is already there, rather than the more assertive activity of producing something new. The high regard for construction can be traced back to Locke’s (1689/1978) labour-mixing theory, which I discussed in Chapter 2. The autonomous liberal subject is deemed to have property in

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her own person and therefore her labour, which is then subsequently ‘mixed’ with the land through the process of construction (see Harris 1996). As with Heidegger’s work, housework is not mentioned in Locke’s theory, and English property law generally views housework as being too remote from the question of property rights and incapable of being assessed in economic terms (see James v Thomas [2007] EWCA Civ 1212). The case law reveals that female claimants can struggle to claim an interest in the home where the work they rely on is of such a nature that it is seen as forming part of their relational role. The most explicit example of this is Lord Bridge’s discussion in Lloyds Bank v Rosset of Mrs Rosset’s “natural” desire as a wife “to spend all the time she could spare and to employ any skills she might have, such as the ability to decorate a room” (p. 131). Here, the possibility of Mrs Rosset having an intention or expectation of a share of the home was expressly negated by what was thought to be her innate wifely duty to decorate and furnish the house in her husband’s absence. This was deemed incompatible with financial gain because, according to the ideology of domesticity, the private realm is governed by altruism rather than selfinterest. Conversely, women who perform work that is more commonly associated with men may be able to persuade the court that their work should be classed as extraordinary and therefore deserving of recompense. In Eves v Eves [1975] 1 WLR 1338, the claimant, Janet Eves, referred to rather disparagingly as the defendant’s “mistress” in the headnote, carried out a large amount of renovation work on the home. Lord Denning commented that she “broke up concrete” and “demolished a shed and put up a new shed” (p. 1340). In his view, this was “quite an unusual amount of work for a woman” and “much more than most women would do” (p. 1340). Thus, a key indicator for valuing the work appeared to be Ms Eves’s gender as well as the relational context in which she was performing it. Others in her situation would have done less, so she was able to rely on this work to form the basis of her case. Additionally, she was a ‘mistress’, meaning that maybe what was expected of her was not as much as that expected of a wife. Other cases reveal that even where women appear to exceed expectations in the way that Janet Eves did, a share of the home is not guaranteed, and their domesticity can act as a barrier. The female claimant in Coombes v Smith, above, described by the judge as “quite the handywoman” (p. 811), had redecorated the home throughout a number of times, installing wooden beams and a central heating system. She had also cleared and tidied the garden (p. 811). However, these acts were not viewed as constituting detrimental reliance, with

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the explanation that they “were done by the plaintiff as occupier of the property, as the defendant’s mistress, and as [the parties’ child’s] mother, in the context of a continuing relationship with the defendant” (p. 820). Coombes displays the extent to which the evaluation of the claimant’s work was rooted in her gendered roles; as mother, and as the defendant’s lover. These roles defined what others could legitimately expect of her in a way that was not experienced by the claimant in Culliford . The recent High Court case Dobson v Griffey [2018] EWHC (Ch) 1117 provides a modern illustration of the court’s remaining difficulties in reconciling women’s work with an expectation or intention of a share in the home. Ms Dobson had carried out a significant amount of renovation work on a farm that was solely owned by her partner, Mr Griffey. She explained in her evidence that she believed it would be their home for life (para 48). However, on the facts, HHJ Matthews was unable to find evidence of a common intention to share ownership, despite Ms Dobson’s work. His comments also show a distinct flavour of the approach taken in Coombes regarding work undertaken by women in a heterosexual relational context: [The claimant’s] labour and commitment were understandable in the context of their relationship and their intended long-term future together with children. this was to be her home, and that of her children. It is unnecessary to suppose some quasi-commercial bargain between them to explain it. (Dobson v Griffey, para 84)

Again, domesticity was seen to be in tension with commercial self-interest and, in the court’s view, that the parties anticipated having children (conforming to the idealised image of the family) helped to root the claimant’s intentions firmly in her gendered relational role.

Sentimentalisation of Dependency-Work The ideology of domesticity imbues dependency-work with affection, which is used to justify its unpaid nature. Dependency-work is portrayed as an expression of love rather than productive work. The suggestion that dependency-worker should expect compensation for her work is regarded by the ideology of domesticity as unattractive and contrary to women’s supposedly natural domestic role (see Neave 1989). Sentimentalisation can render unproductive those contributions that would ordinarily have some form of commercial value. In James v Thomas, the claimant performed a significant amount of unpaid work in the context

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of a jointly run business. As was explained in the judgement, she “drove a tipper, dug trenches, picked up materials, laid concrete, tarmac and gravel” (para 4). It was work that would fall into the category of construction and was connected to a commercial venture, both aspects that have more legal visibility than ordinary housework. However, the judgement illustrates that Ms James was hindered by her relational role in a similar manner to the claimant in Dobson v Griffey. The influence of domesticity was evident in Sir John Chadwick’s explanation for her motivations: The true position, as it seems to me, is that she worked in the business, and contributed her labour to the improvements to the property, because she and Mr Thomas were making their life together as man and wife. The Cottage was their home: the business was their livelihood. It is a mistake to think that the motives which lead parties in such a relationship to act as they do are necessarily attributable to pecuniary self-interest. (James v Thomas, para 36)

References are made to the marriage-like quality of the parties’ relationship, demonstrating the pervasive influence of the married family. The separation between the public and private spheres is emphasised through the clarification that the property was the parties’ home rather than some commercial venture. The judge’s use of the phrase “pecuniary self-interest” operates as a juxtaposition to what is expected within the domestic realm of the marriage-like relationship. Ms James was prevented from succeeding in her claim because it would be “a mistake” for the court to suggest that she might be motivated by her own interests and financial future, rather than by the relationship’s success. James echoes Lord Browne-Wilkinson’s statement in Grant v Edwards [1986] Ch 638 that “setting up home together, having a baby and making payments to general housekeeping expenses…may all be referable to the mutual love and affection of the parties and not specifically referable to the claimant’s belief that she has an interest in the house” (p. 657, emphasis added). Lord Browne-Wilkinson’s words illustrate that, if domestic work is to be rewarded, it must be reframed as a commercial bargain, whereby the parties are effectively cast as arms-length strangers. The ideology of domesticity makes it difficult to do this in the case of female dependency-workers unless their work can be demonstrated to fall outside what is expected of them.

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The Male Claimant: Commercialising the Personal The sentimentalised conception of women’s dependency-work discussed above can be contrasted with the reasoning employed in some of the cases involving male claimants. Illustrating the perceived incompatibility between affection and economic reward and the association between men and the public sphere, these cases feature intimate and familial relationships that have been recast into a commercial framework to portray the claimant as motivated by financial gain. In the estoppel case Thorner v Major, the claimant, David Thorner, assisted his father’s cousin, Peter Thorner, in his farming business for a period of nearly 30 years. This involved the claimant working on the farm unpaid but also providing companionship and personal assistance to Peter. Some years after the claimant had started work, Peter implied to him that he would inherit the farm. The claimant continued to work on the farm until Peter died in 2005. Despite his assurance, Peter died intestate and the farm was distributed according to the statutory intestacy rules, meaning that the claimant received nothing. In allowing the claimant’s appeal, the House of Lords focused on the link between the assurance given by Peter, and the claimant carrying on his unpaid work. Even though the claimant had already been working unpaid for several years when Peter gave the assurance, it was suggested that the claimant’s work was conditional on his inheritance. This conflicted with the court’s additional finding that the claimant would probably not have raised any objections had the farm needed to be sold before Peter’s death to pay for his nursing care (para 19). In addition, the claimant also worked on his parents’ farm for a nominal amount of ‘pocket-money’. These two factors could be taken to suggest that the claimant was not motivated by financial gain and instead carried out the work out of a sense of loyalty and affection for Peter and for his parents. However, demonstrating that the frame of reference was the autonomous liberal subject, the court felt it necessary to downplay sentiment in favour of commercial considerations that illustrated that the claimant had acted ‘rationally’ in the circumstances. A second example of judicial commercialisation of relationality to fit with norms of masculinity can be seen in Wayling v Jones. Here, the claimant, Paul Wayling, was in a long-term same-sex relationship with the deceased, Daniel Jones. During the relationship, he carried out a significant amount of unpaid work in hotels owned by Mr Jones, as well as providing personal care for him when his health deteriorated. Mr Jones had on several occasions made assurances to Mr Wayling that he stood to inherit the hotels on his death,

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a promise that he failed to honour. In holding that Mr Jones’s estate was estopped from denying Mr Wayling an interest, the Court of Appeal held that, had it not been for the assurances made, Mr Wayling would not have carried out the work. In his evidence, Mr Wayling said that if Mr Jones had told him that he was no longer to receive an interest, he would have left the relationship (p. 172). However, he also said that if Mr Jones had never made the promise of a share, this would not have affected his decision to have a relationship with him (p. 173). As Flynn and Lawson (1995) have argued, the court has reconfigured the intimate relationship in commercial terms. They argue that the reason Mr Wayling would have left the relationship, had he been told that he would no longer receive a share, was because it would represent a betrayal by the deceased and demonstrate that the claimant’s work was not valued (Flynn and Lawson 1995). This illuminates the differences between an economic and a relational analysis, which can also be seen in the contradictory statements about motivation made by the court in Thorner. The liberal theoretical approach finds an inherent conflict between a denial of financial motivation on the one hand, and a feeling that one has been exploited on the other hand. However, recognising the inherent relationality of human nature allows an examination of the quality of the relationship in question. In both Thorner and Wayling, had the deceased been penniless, this may well not have affected the claimants’ motivation to perform care out of feelings of loyalty, love, or affection. This does not invalidate or impact on their sense of feeling aggrieved when their loved ones behaved in a selfish manner, failing to reciprocate, and thus devaluing the claimants’ caring contributions. Culliford v Thorpe also involved a male same-sex couple. Shortly before Christmas in 2016, the claimant, Jocelyn Thorpe, was served with notice of possession proceedings in respect of the home he had shared with Rodney Culliford during their relationship, title to which was in Mr Culliford’s sole name. Mr Culliford had died intestate some nine months prior to this, and his estate passed to his brother and sister under the intestacy rules. The appeal concerned Mr Thorpe’s counterclaim for a constructive trust and proprietary estoppel in respect of the home. In support of his counterclaim, Mr Thorpe, whom the judge described as “more practical” than his partner (para 19), relied on the fact that he had carried out a significant amount of unpaid work in the home, including repairing the boiler and decorating the main bedroom (para 19). He said that he had carried out this work in reliance on a conversation that he had with the deceased in 2012, when the deceased told him words to the effect that “what is mine is yours and what it yours is mine” (para 26).

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HHJ Paul Matthews found that “the defendant would not have done the work he did if there had not been an agreement of this kind between them” (para 32). Thus, the agreement (which consisted of a casual conversation when the parties were moving house) was given significant force within the judgement. HHJ Matthews stressed that the court was “implementing the agreement- the informal bargain- between them” (para 78). The emphasis was thus on the unconscionability that would result from the estate reneging on the agreement; a distinctly contractual approach. Interestingly, HHJ Matthews was also the judge in Dobson v Griffey, discussed above. The two cases were heard only a few months apart but the difference in language and approach is striking. The reasoning in Thorner, Wayling, and Culliford illustrates a judicial need to reframe the terms of the parties’ relationship to make it more compatible with the economic arms-length ideal of the autonomous liberal subject. For example, in Thorner, it was emphasised that the claimant had “other opportunities” (para 4) that he was considering and had missed out on, although the details of these were not elaborated on. Despite the fact that the claimant had already been helping his relative and was also working largely unpaid for his parents, the House of Lords’ judgement suggests that he would consider the work alongside other employment opportunities and take the most lucrative one. The idea that the claimant might feel motivated by other factors to assist his relative, irrespective of whether he was financially rewarded, would not fit with the characteristics of the commercially minded autonomous liberal subject. The same-sex relational dimension of Wayling and Culliford also merits consideration in terms of what it reveals of judicial attitudes to different forms of intimacy. In 1995, Flynn and Lawson suggested that the court commercialised Mr Wayling’s relationship due to discomfort and unfamiliarity with the idea of a sexual relationship between two men (Flynn and Lawson 1995, p. 115). However, it is difficult to level the same accusation at the court in Culliford , where the parties’ relationship was described as “a committed, intimate relationship where two people decided to spend the rest of their lives together” (para 62). Yet, Mr Thorpe was not defined by what the court deemed to be his relational role in the same way as the female claimants discussed above were. Meaningful comparison is hampered by the fact that there are few to no appellate cases involving unpaid caregiving contributions in the context of a female same-sex relationship. Tinsley v Milligan [1993] 1 WLR 126 did involve a lesbian couple, but it was a resulting trust claim based on monetary contribution. Tinsley itself showed a similar discomfort with the sexual nature of the parties’ relationship to that seen in Wayling (e.g.

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Ms Tinsley and Ms Milligan were described in the headnote as “two single women” (p. 340) but, as with Culliford, it is unlikely that this would happen today. Flynn and Lawson (1995) have speculated that lesbian claimants, although not situated within the heterosexual family paradigm, would still be held back by their gender, and the social expectations on them to be carers. They conclude that “neither [a lesbian, nor a heterosexual woman] is as well situated, doctrinally, as a gay man” (Flynn and Lawson 1995, p. 120). The case law also reveals the use of professional comparisons to elevate the male dependency-worker to a higher social position and distance him from what is perceived as ‘women’s work’ in order to compensate his efforts (Flynn and Lawson 1995, p. 116). For instance, in Wayling v Jones, the court referred to the claimant as a “companion and chauffeur” (p. 171) rather than the deceased’s life partner. There was thus no need to consider what might be expected of a male dependency-worker in the context of a same-sex relationship because his role had been rewritten to one where financial reward would be a given. Although set outside the conjugal relational context, Campbell v Griffin [2001] EWCA Civ 990 demonstrates a similar tendency to use professional comparisons. Here, the claimant was a single man who had moved in with an elderly couple as a lodger in the late 1970s. Although it was initially a commercial arrangement, over the years, the relationship changed significantly and, in his evidence, the claimant explained that he was eventually treated by the couple “as a son” (p. 19) and that he no longer paid them rent for his room. The relationship between the claimant and the couple lasted over 20 years, during which time he performed significant and increasingly burdensome unpaid caregiving for the couple until they went into care homes. The court again struggled to reconcile the presence of affection with the commercial motivation necessary to be awarded a proprietary interest. It is notable that at first instance, the judge had remarked that The motivation [the claimant] claims for doing the jobs… was that he had been told that he had a home for life. However, in giving his evidence, he further went on to say that the reasons why he cooked meals for Mr and Mrs Ascough, undertook shopping and cleaning and gardening, was friendship. (p. 19)

This finding was used to deny relief to the claimant, demonstrating that his close and personal relationship with the couple directly contradicted the expectation of some reward. Robert Walker LJ in the Court of Appeal disagreed with the trial judge’s conclusion, but in the process, reverted to casting the claimant in a more distant role of lodger or professional career,

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despite the evidence that neither party saw the other in these terms. He explained that “a lodger does not normally cook his landlords’ evening meals or delay going to work or go short of sleep in order to look after them or clean up after incontinence” (p. 24). He further compared the claimant to a live-in carer who would, in his view, “be expected to be paid a very substantial wage” (p. 24). The court did not therefore have to consider the level of care that would be reasonable in an affective context, because it removed the claimant from that context before assessing his work. Instead, he was to be rewarded because he was performing something akin to a professional service. Campbell was also notable for the visibility given to the emotional and physical toll that caring for an elderly couple had on the claimant. A spotlight was shone on the embodied and less pleasant aspects of his work, contradicting the tendency to sentimentalise female dependency-work. In particular, Robert Walker LJ focused on the claimant having to clean up after incontinence and was also attentive to the physical toll on the claimant, referring to his “going short of sleep” (para 24) as a result of frequently having get up in the night to tend to the elderly couple’s needs, highlighting the often-constant nature of the work involved in looking after another person. By contrast, the female caregiver scenario in Thomson v Humphrey, discussed above, also involved elderly care (and presumably many of the same issues) but the judge did not engage in any detailed discussion of intimate or bodily tasks that the claimant performed for her mother-in-law; she merely “looked after” (para 43) her. The difference in how their work was described reflects the roles they were ascribed in the respective judgements. Mr Campbell was likened to a professional carer whereas Ms Thomson was described as a “traditional housewife” (para 34). It was thought unnecessary to remark on the individual tasks performed by Ms Thomson and the effect they may have had on her. After all, in contrast to Mr Campbell, her marriage-like relationship meant that dependency-work was inextricably bound up with her relational role. The sentimentalised discourse masks the embodied and emotional reality of dependency-work. It is instead given a romanticised gloss, depicted as freely chosen and, indeed, a female vocation. Women are expected to perform caregiving work in the heterosexual relational context. If they expect recompense, they must show that their work went beyond what was expected of them. Sentimentality adds a further reason for denying reward; the experience is constructed as a freely chosen and pleasant one—an expression of affection rather than real work. Men are not constrained in the same way. The presence of affection (e.g. in Campbell, where there was a quasi-familial relationship between the parties) is not fatal to their claims in the same way

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as it is for women. It also means that the embodied and emotional aspects of their work are rendered visible in a way that that does not occur with women’s work.

Conclusion In this chapter, I have analysed how law regards dependency-work performed in the context of the unmarried conjugal private family. Although the married and unmarried family have function similarities in terms of their responsibility for dependency-work, English law is notable for its lack of specific financial remedies for cohabitants upon relationship breakdown, necessitating reliance on the ordinary rules of property and trusts. I have argued that the constructive trusts framework is predicated on the ideal of the autonomous liberal subject, simultaneously marginalising those who cannot conform with the ideal. Property rights are given a tantamount to inviolable status, reinforcing the notion of state restraint, where the court is confined to identifying and enforcing, rather than creating, proprietary rights. I also noted that property law relies on a clear distinction between the public realm (in which property law and commercially motivated behaviour belongs) and the private sphere (which is viewed as characterised by self-sacrifice). The legal framework draws on gendered conceptions of dependency-work, whereby it is assumed to form a natural part of female relational roles, meaning that female claimants can struggle to establish a proprietary interest in the home. The case law shows that women’s motivations for performing dependency-work are often attributed to love and affection rather than commercial motivation. By contrast, where the claimant is male, courts have demonstrated a reluctance to acknowledge relationality and emotion. While male claimants seemingly find it easier to overcome the hurdles faced by female claimants, this comes at the price of recasting their contributions into commercial language. As I have demonstrated in this chapter and Chapter 4, whether the family is married or unmarried, through its regulation, law upholds the primacy of the autonomous liberal subject. The legal regulation of the private family is based around a notion of idealised economic self-sufficiency and state restraint. While there is an attempt to value dependency-work in the married context, the same is not true where the parties are not married, exacerbating unmarried dependency-workers’ relational vulnerability. Unmarried dependency-workers, even more so than their married counterparts, are at risk of suffering from economic, psychological, and spatial harms relating to

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their role. Rather than providing protection, the legal frameworks entrench existing inequalities and blame dependency-workers for their inability to conform to the self-sufficient norm. The current position needs to be challenged with reform based around recognising both the inherent nature of vulnerability and the wider societal value of performing dependency-work. In the next two chapters, I will consider how this can take place through an exploration of the concept of resilience.

Bibliography Barlow, A., & Duncan, S. (2000a). New Labour’s Communitarianism, Supporting Families and the ‘Rationality Mistake’: Part II. Journal of Social Welfare & Family Law, 22(2), 129. Barlow, A., & Duncan, S. (2000b). Supporting Families? New Labour’s Communitarianism and the ‘Rationality Mistake’: Part I. Journal of Social Welfare & Family Law, 22(1), 23. Blomley, N. (2005). Remember Property? Progress in Human Geography, 29 (2), 125. Brown, A. (2019). What Is the Family of Law? The Influence of the Nuclear Family. Oxford: Hart. Cotterrell, R. (1987). Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship. Journal of Law and Society, 14 (1), 77. Davies, M. (2007). Property: Meanings, Histories, Theories. Abingdon: Routledge. Davies, M. (2014). Home and State: Reflections on Metaphor and Practice. Griffith Law Review, 23(2), 153. Delgado, R. (1989). Storytelling for Oppositionists and Others: A Plea for Narrative. Michigan Law Review, 87 (8), 2411. Flynn, L., & Lawson, A. (1995). Gender, Sexuality and the Doctrine of Detrimental Reliance. Feminist Legal Studies, 3(1), 105. Fox-O’Mahony, L. (2014). Property Outsiders and the Hidden Politics of Doctrinalism. Current Legal Problems, 67 (1), 409. Fudge, J. (2005). The New Dual-Earner Gender Contract: Work-Life Balance or Working time Flexibility. In J. Conaghan & K. Rittich (Eds.), Labour Law, Work and Family: Critical and Comparative Perspectives. Oxford: Oxford University Press. Gardner, S., & Davidson, K. (2012). The Supreme Court on Family Homes. Law Quarterly Review, 128(2), 178. Gordon-Bouvier, E. (2019a). Crossing the Boundaries of the Home: A Chronotopical Analysis of the Legal Status of Women’s Domestic Work. International Journal of Law in Context, 15 (4), 479. Gordon-Bouvier, E. (2019b). Relational Vulnerability: The Legal Status of Cohabiting Carers. Feminist Legal Studies, 27 (2), 163.

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Gorman-Murray, A. (2014). Materiality, Masculinity, and the Home: Men and Interior Design. In A. Gorman-Murray & P. Hopkins (Eds.), Masculinities and Place. Abingdon: Routledge. Halliwell, M. (1991). Equity as Injustice: The Cohabitant’s Case. Anglo-American Law Review, 20 (3), 500. Harris, J. W. (1996). Who Owns My Body. Oxford Journal of Legal Studies, 16 (1), 55. Hayward, A. (2012). ‘Family Property’ and the Process of ‘Familialisation’ of Property Law. Child and Family Law Quarterly, 24 (3), 284. Heidegger, M. (1971). Building, Dwelling, Thinking. In A. Hofstadter (Ed.), Poetry, Language, Thought. New York: Harper Books. Hudson, A. (2003, June 11). The Cost of Everything and the Value of Nothing: Rights in the Family Home. Paper presented at the Home-Sharers and the Law Symposium, University of Kent at Canterbury. Keenan, S. (2017). Smoke, Curtains and Mirrors: The Production of Race Through Time and Title Registration. Law and Critique, 28(1), 87. Locke, J. (1689/1978). Of Property (from chapter V of Locke’s ‘Second Treatise of Government’). In C. B. Macpherson (Ed.), Property, Mainstream and Critical Positions. Toronto: University of Toronto Press. MacRae, H. M. (1995). Women and Caring. Journal of Women & Aging, 7 (1–2), 145. McMunn, A., Bird, L., Webb, E., et al. (2020). Gender Divisions of Paid and Unpaid Work in Contemporary UK Couples. Work, Employment and Society, 34 (2), 155. Miles, J. (2003). Property Law v Family Law: Resolving the Problems of Family Property. Legal Studies, 23(4), 624. Neave, M. A. (1989). Three Approaches to Family Property Disputes: Intention/Belief, Unjust Enrichment and Unconscionability. In T. Youdan (Ed.), Equity, Fiduciaries and Trusts. Toronto: Carswell. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Pateman, C. (1988). The Sexual Contract. Cambridge: Polity Press. Rotherham, C. (2002). Proprietary Remedies in Context: A Study in the Judicial Redistribution of Property Rights. Oxford: Hart. Sarmas, L. (1993). Story Telling and the Law: A Case Study of Louth v Diprose. Melbourne University Law Review, 19, 701. Singer, J. W. (2000). Property and Social Relations. In C. Geisler & G Daneker (Eds.), Property and Values: Alternatives to Public and Private Ownership. Washington, DC: Island Press. Sloan, B. (2015). Keeping Up with the Jones Case: Establishing Constructive Trusts in ‘Sole Legal Owner’ Scenarios. Legal Studies, 35 (2), 226. Unger, J. (1956). Intent to Create Legal Relations, Mutuality and Consideration. Modern Law Review, 19 (1), 96. Waldron, J. (1988). The Right to Private Property. Oxford: Clarendon Press.

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6 Theorising Resilience

So far, I have concentrated on the production and impact of relational vulnerability in the context of the private conjugal family, focusing specifically on how norms of individualistic autonomy and invulnerability are produced and reinforced by legal frameworks. However, any vulnerability analysis is incomplete without considering how the vulnerability in question can be addressed, or in some cases redressed, and who bears responsibility for doing so. In this chapter and the next, I examine the concept of resilience as an antidote to vulnerability or, in this specific context, the means by which recovery from, or avoidance of, the economic, psychological, and spatial aspects of relational vulnerability can take place. Fineman (2017, p. 146) has described resilience as “the critical, yet incomplete solution to our vulnerability”, explaining that “[a]lthough nothing can completely mitigate our vulnerability, resilience is what provides an individual with the means and ability to recover from harm, setbacks and the misfortunes that affect our lives”. Yet, despite its centrality to vulnerability theory, the precise meaning of resilience has often been left unspoken or undeveloped in the literature. As Lotz (2016, p. 54) has commented, “where [resilience] does receive mention, it receives no elaboration”. In this chapter, I want to address this gap and provide a more detailed and nuanced consideration of the nature and aims of resilience than currently exists within the theory. Establishing a theoretical framework of resilience is necessary in order to identify the standards against which any proposals for legal and social reform should be measured (which I do in Chapter 7). While I agree with Fineman’s (2008) argument that resilience can only ameliorate—not eliminate—the inherent embodied vulnerability of the © The Author(s) 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7_6

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human condition, I have argued throughout this book that the specific additional harms that befall dependency-workers (that constitute a more than ordinary vulnerability) are capable of elimination or at least significant reduction. Dependency-workers are currently harmed as a result of the restrained state’s desire to promote an unrealistic ideal of invulnerable personhood, which is achieved through its structuring of institutions and relationships, including the private family. The pursuit of resilience for dependency-workers must involve a restructure of their network of individual and institutional relations so that they empower, rather than disadvantage, dependency-workers. I begin the chapter by considering what it means to be resilient. In doing so, I explore the origins of resilience in social psychology, where it refers primarily to an individual disposition towards overcoming hardship, albeit with growing recognition of the importance of external supportive structures. I then consider how resilience has been interpreted in liberal and neoliberal theories to correspond with individual personal responsibility and state restraint. I contrast this with vulnerability theory’s rejection of individualism and its definition of resilience as a set of external resources controlled and distributed by the state. While I reject the neoliberal model and argue that a state-centred model of resilience, such as that proposed by Fineman, is a far more appropriate one, I argue that a theoretical model of resilience must explain its internal as well as external components. I view resilience as consisting predominantly of state-distributed material and social resources (responding to the economic and spatial aspects of relational vulnerability) but also comprising identifiable normative goals that ensure that the dependency-worker views herself as resilient (addressing the psychological angle of relational vulnerability).

The Origins of Resilience: Overcoming Hardship Theories of human resilience primarily originate in the field of social psychology. Here, there exists a rich literature on resilience, spanning many decades and examining the necessary qualities for an individual to be deemed resilient. Psychologists have predominantly conceptualised resilience as the human ability to adapt and cope with hardship. It has been described as the capacity “to bend but not break” (Southwick et al. 2016, p. 77), and “to adapt well in the face of tragedy, trauma, adversity, hardship, and ongoing significant life stressors” (Newman 2005, p. 227). Scholars in this field have

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argued that adaptability to hardship is not a universal quality; not all individuals possess equal abilities to recover from setbacks. Instead, research has indicated that some individuals appear to be better than others at ‘bouncing back’, displaying an ability to thrive despite experiencing events that would ordinarily be associated with poor life-outcomes (see Wagnild and Young 1990; Masten 2001). When discussing resilience, the social psychology literature also tends to adopt a relatively narrow definition of vulnerability, usually described as ‘risk’, whereby the individual must be subject to “current or past hazards judged to have the potential to derail normative development” (Masten 2001, p. 228). Resilience is thought to consist of the various means by which humans adapt and cope with these hazards and risks that would otherwise be associated with a worse than average outcome. While some risks are associated with unfavourable chances across the life course (e.g. experiencing childhood poverty, reduced educational opportunities, or early exposure to domestic abuse in the home), others may be unexpected, specific traumatic events, including bereavement, divorce, serious injury, or experiencing natural or man-made disasters. In the case of the latter set of events, social psychologists measure resilience through the individual’s ability to return to pre-adversity conditions, or even to surpass them (Lotz 2016; Carver 1998). In terms of explaining differences in resilience across populations, early psychological research presented resilience as something ‘out of the ordinary’, with so-called resilient individuals being depicted as ‘super-human’ or ‘invincible’ (Masten 2001). Certainly, the early research regarded resilience exclusively as an internal disposition or mindset rendering an individual especially adept at overcoming hardship (Anthony 1987). Resilient individuals were described as possessing “optimism, interpersonal insight, warmth and skilled expressiveness” (Klohnen 1996, p. 1067), qualities that provided them with superior coping mechanisms than those who did not share the same traits (Murphy and Moriarty 1976). The above interpretation of psychological resilience has now given way to a more holistic approach that moves away from ideas of exceptionality. What has been described as a “second wave” (Ungar et al. 2007, p. 287) within resilience studies moved towards a greater focus on the processes (comprising both internal and external elements) that can increase the chance of positive outcomes from adversity (see, e.g., Rutter 1987; Masten and Coatsworth 1998; Masten 2001). The second wave literature provides significantly more useful insights than the earlier work for socio-legal scholars of resilience. In particular, psychologists have remarked on the role played by relational and material assets and resources in offsetting risks of adversity (Benson et al.

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1999; Scales et al. 2006). This research recognises the protective function of external support networks that can help develop coping strategies for dealing with hardship across the life course. It also explicitly acknowledges the role played by relationality and social support; recognising “that humans are embedded in social systems, and that these systems may be more or less resilient in their own right, as well as more or less able to support the adaptive psychological capacities of the individual” (Southwick et al. 2016, p. 77). The language of relationality fits closely with the notion of relational embeddedness that I have developed throughout this book. Within the second wave literature, there is also a clear move away from the idea that resilience is an exceptional quality possessed only by the very few, with Masten (2001, p. 3) stressing that resilience arises “from ordinary resources and processes”. In summary, the psychological models of resilience focus on the different processes involved in overcoming hardships. It is largely internal in its focus in that it examines the individual’s coping mechanisms, albeit recognising the role played by external resources and networks. By contrast, the conception of resilience in vulnerability theory that I detail below views resilience purely in terms of state-allocated external assets. As I suggest, insights can be drawn from internal perspectives of resilience that can address some of the shortcomings of vulnerability theory’s treatments of the concept. However, before doing this, I will examine how the notion of resilience has gained traction in liberal and neoliberal discourses, echoing the commitment to autonomous and invulnerable personhood but ignoring the need for external relationships and support systems that promote coping.

Neoliberal Interpretations of Resilience: Invulnerability and Personal Responsibility References to resilience have become increasingly popular in the neoliberal political vocabulary. As I have argued in previous chapters, neoliberal ideology stigmatises vulnerability and regards it as a societal problem that must be overcome. Resilience represents the goal towards which currently vulnerable individuals and groups should strive. The term is employed to command citizens to assume personal responsibility both for the existence of their adverse circumstances and for taking steps to overcome them (Joseph 2013). As Joseph (2013, p. 40) argues, neoliberal resilience “fits with a social ontology that urges us to turn from a concern with the outside world to a concern with our own subjectivity, our adaptability…and, above all else, our responsible decision making”.

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Under its neoliberal definition, resilience is synonymous with the qualities inhabited by the idealised autonomous liberal subject discussed in previous chapters. It is used to describe a person who possesses infinite capacities for self-righting from hardship, achieving self-sufficiency without the assistance of the restrained state. Within this vision, vulnerability and resilience are depicted as mutually exclusive concepts, with resilience offering the ‘solution’ to the ‘problem’ of vulnerability. In contrast to the vulnerability approach discussed below, neoliberal discourse, much like the psychological model, regards resilience as an internal concept but, in contrast to the latter, it stresses that all individuals have a personal responsibility to become resilient and is relatively unconcerned with the means by which this takes place. The individual is assumed to be rational and autonomous, capable of planning her life course and avoiding the risks that befall only those who are less prudent and responsible. While neoliberalism reluctantly accepts that the state must offer a basic level of support for those who do not conform to the autonomous ideal, it is emphasised that such support is intended to be minimal and temporary, with the expectation that the individual should (and can) return to the ideal state of self-sufficiency as soon as possible (see, e.g., Mullaly 2007). In its expectation and promotion of resilience, the restrained state labels those who cannot conform to this as less than full citizens. Seeking state assistance, thereby displaying signs of human vulnerability (and therefore an absence of neoliberal resilience), attracts both suspicion and surveillance. For example, academic commentators have pointed to an underlying insinuation within neoliberal political discourses that welfare claimants are seeking to take more than their ‘fair share’ of resources, thereby negatively impacting other citizens (Garthwaite 2011). Historically, distinctions were drawn between those regarded as deserving of the state’s help, because they are not considered to blame for their misfortune (the sick, the elderly, and the disabled), and those who were ‘undeserving’ and blameworthy (the unemployed, immigrants, and single mothers) (Katz 1990). According to this model, the deserving were regarded as unable to become resilient, whereas the undeserving were unwilling to do so. However, with a growing political focus on individualism and personal responsibility, these traditionally accepted lines are becoming increasingly blurred. As Briant et al. (2013) have noted, even those with chronic illnesses or disability are now referred to in pejorative terms and sometimes blamed for their predicament. They found evidence that media portrayals of disability claimants post-2010 (when the Conservative-led Coalition government came to power) were laden with references to potentially fraudulent disability claims, malingering, and the heavy cost to the public purse of financially maintaining this group of people

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(Briant et al. 2013, p. 875). Thus, the extent to which obvious vulnerability, even if seen as ‘blameless’ in the past, is tolerated, is rapidly decreasing. Neoliberal expectations of resilience are also replete in modern family law discourses (which, as discussed in Chapter 4, are increasingly grounded in autonomy rhetoric). As Diduck and O’Donovan (2006, p. 13) have remarked, “old certainties become re-ordered. Formerly social or political problems become recast as private, family problems, solvable by individual family members”. The expectations of rapid post-divorce self-righting discussed in Chapter 4 provide an apposite example of this shift. As I argued there, the divorcing individual is expected to move on from the event and become economically self-sufficient as soon as possible. Continued financial dependency, whether on the former spouse or the state, is stigmatised as a failure to comply with expectations. Furthermore, the decision to undertake role specialisation during marriage (which then inevitably impacts on postdivorce earning capacity) is regarded as a lifestyle choice and one for which the state should not be expected to take responsibility (see Gordon-Bouvier 2020). Rather, the individual dependency-worker is regarded as the author of her own misfortune and cannot call on the state to assist her. Similarly, in the cohabitation context, the state imposes an expectation of resilience on its citizens. Individuals are not merely expected to resolve disputes without state assistance (as there exists no legal mechanism for redistributing finances), but also have responsibility to ensure that there is no dispute in the first place. A key example can be seen in the government’s Living Together Campaign, which was launched in 2004.1 This campaign sought to improve the legal awareness of the large section of the population who erroneously believed in the ‘common law marriage’ myth (i.e. that living together for a certain period of time affords cohabitants financial rights similar to those applicable to spouses) (see Barlow 2009). The solution was deemed to be to educate and encourage cohabitants to protect themselves from the outset rather than expecting the state to intervene to do so once the relationship had ended. It also created the impression that cohabitation disputes predominantly arise due to lack of information, rather than more complex factors such as relational inequalities and an unresponsive state. The tendency to blame a lack of information was also observed in the responses of family lawyers participating in research by Douglas et al. (2007, para 5.22-25.24). The researchers found that solicitors dealing with cohabitation disputes frequently blamed conveyancers for failing to give proper advice at

1 See

Living Together https://www.advicenow.org.uk/living-together (accessed 1 August 2020).

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the time of purchase of the home, with the insinuation that legal advice would have avoided the problems that later occurred. The state has posited contractual solutions as a means of mitigating cohabitants’ current legal predicament. Unmarried couples are informed that they can avoid hardship by entering into a cohabitation agreement, which governs financial obligations on separation and could include provision of postseparation maintenance if both parties consented to it. The Living Together Campaign describes these agreements as “a brilliant way to protect you and your partner”.2 In promoting cohabitation agreements, there is a clear steer towards personal responsibility and private ordering as a means of avoiding the state’s involvement. As Barlow (2009, p. 305) points out, initiatives such as the above, aimed at education and legal awareness, are based on a problematic presumption of rationality. They assume an unconstrained autonomous individual who will make decisions based on self-interest once in possession of all salient facts.

A New Vision of Resilience: The ‘Responsive State’ Whereas neoliberal discourse has interpreted resilience as an internal disposition that all responsible citizens should be capable of attaining, the existing vulnerability literature defines it as a set of assets external to the individual. These assets are controlled and distributed by the state and the individual herself has limited influence over their acquisition. Fineman has described resilience as: [A]ssets – reservoirs of capabilities, advantages, or coping mechanisms that cushion us when we are facing misfortune, disaster and violence, as well as constituting the resources that we will need if we are to take risks and avail ourselves of opportunities as they arise. (Fineman 2013, p. 22)

She further divides these assets into subgroups of “physical, human, social, ecological or environmental, and existential” (Fineman 2017, p. 146) resources, stressing that “resilience is not something we are born with, but is accumulated over the course of our lifetimes within social structures and institutions” (Fineman 2017, pp. 146–147). Under Fineman’s account, control over the distribution of the assets that engender resilience lies squarely with the state. The notion that individuals 2 Ibid.

For critique, see Reece (2015).

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have direct influence over their ability to thrive in the face of their inherent embodied vulnerability is, in Fineman’s view, a neoliberal fantasy, which is employed to blame those who are unable to hide their unavoidable vulnerability and dependence on others. Those who prosper under the neoliberal restrained state have almost invariably been allocated a disproportionate share of resources, often since birth, that enable them to overcome or altogether avoid excessive hardships. While neoliberal rhetoric promotes the notion that the individual is responsible for his or her own success or failure, this downplays the state’s power over resource distribution and the deliberately unequal way that this currently takes place. The principle of state restraint instead legitimises inequalities, for it equates possession of material wealth with good citizenship, personal responsibility, and hard work, with success ostensibly within the grasp of all who deserve it. Yet, as I have argued throughout this book, self-sufficiency and conformity with the autonomous ideal can only be achieved by some individuals, at the direct expense of others. Those who perform dependency-work are inevitably excluded from maximising their economic independence because this is in many respects incompatible with caregiving responsibilities. Rather than recognising this and providing means by which greater equality of access to resources can be achieved, the state labels the dependency-worker as having made an active choice to compromise her earning power and, therefore, undeserving of subsidy and support. A more equitable distribution of resilience-enhancing assets across the population can, in Fineman’s view, only be achieved through a state that responds directly to the inherent vulnerability of its citizens and which is constructed around an imagined vulnerable subject, whose body is susceptible to injury and accident, and whose life course is punctuated by periods of dependency upon others (Fineman 2010). This responsive state cannot hope to eliminate the embodied vulnerability that characterises the human condition. However, it is able to provide a network of institutional support that responds directly to the vulnerability of its citizens. For example, while the state cannot prevent individuals from suffering illness, it can ensure free access to a comprehensive healthcare system, coupled with adequate financial subsidies for those whose ill health prevents them from working. Equally, the state cannot eliminate the physical decline brought about by ageing, but it can ensure that elderly persons are provided with networks of social, practical, and economic support to reduce the risk of hardship that may otherwise ensue. Fineman’s view of resilience is ultimately based on the goal of equality. She argues that “the state should have a rigorous duty to ensure for everyone both equal protection of the law and equal opportunity to enjoy the benefits of

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society” (Fineman 2012, p. 1752). Thus, a core aim of resilience is that the various assets of which it consists must be distributed equitably between citizens. Importantly, Fineman’s model is striving for a version of equality that differs substantially from liberal theory’s promotion of equality as ‘sameness of treatment’. Liberal theories stress that the state must show “equal concern for all those citizens over whom it claims dominion and from whom it claims allegiance” (Dworkin 2002, p. 1). The principle of equality before the law is fundamental in Western legal systems, regarded as vital to ensure law’s impartiality and integrity (see Kelsen 1957). In promoting equality, liberal theories inevitably tend to favour anti-discrimination approaches, whereby perceived disadvantaged groups (usually defined by identity-based criteria such as race, sex, sexual orientation, or disability) are given enhanced legal protections to ensure that they are not treated objectively worse than a hypothetical comparator who does not share this identity characteristic (seen for example in the provisions under the Equality Act 2010). Thus, equality is seemingly achieved by eliminating disadvantages. In her exploration of resilience, Fineman firmly rejects the nondiscrimination approach to equality, arguing that it “leaves undisturbed and may even serve to validate existing institutional arrangements that privilege some and disadvantage others” (Fineman 2012, p. 1717). Certainly, reliance on a hypothetical comparator who does not possess the relevant protected characteristic can be seen to reinforce neoliberal invulnerability as the norm. It promotes the idea of the state as a neutral arbiter rather than having itself created the inequalities that it aims to address. As Addis (2015, p. 322) has argued, “when the state takes the seemingly neutral stance of non-discrimination at a given moment in time, it freezes in place the unequal arrangements that have led to the particular circumstance”. Nondiscrimination does not displace the vision of ideal autonomous personhood. Rather, it enables the state to discharge its minimum duties towards narrowly defined groups that it labels as not conforming to autonomous personhood, giving the impression that their access to resources is now on an equal footing and that any remaining disadvantages are as a result of individual failure to become autonomous and self-sufficient. By contrast, the commitment to equality under vulnerability theory recognises that, to achieve substantive rather than formal equality of resource distribution, difference rather than sameness of treatment is often needed. In contrast to the social psychology model’s internal and individualistic focus, Fineman is only concerned with the allocation of external resources, as guided by an overall objective of achieving substantive equality across populations. The main attraction of this approach is that it focuses on state, rather

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than individual, responsibility for achieving resilience. In doing so, it removes the stigma that currently exists under the neoliberal approach, whereby a lack of resources is equated with personal failure. It also forces attention on the state’s institutional and relational structures and prompts a reconceptualisation of these in order to achieve different outcomes than presently exist. Nonetheless, I believe that there is a missing element from the universal model’s conception of resilience that limits its usefulness when evaluating the suitability of different potential state actions to address vulnerability. As I discussed in Chapter 1, vulnerability theory has been accused of paternalism, with Mackenzie (2014, p. 34) warning that “notions of vulnerability and protection can be…used to justify coercive or objectionably paternalistic social relations, policies, and institutions, which often function to compound rather than ameliorate the vulnerability of the persons or groups they are designed to assist”. A similar argument has also been made by Kohn (2014). State distribution of resources can take place in many different ways and without some form of normative goal against which these can be measured, evaluation of their efficacy can be problematic. In particular, I am concerned that the universal model of resilience does not make any reference to the individual’s perception of her own resilience and ability to live with her vulnerability. It is here that I believe that useful insights could be drawn from the psychological model of resilience discussed above, which can assist with the development of a more nuanced theoretical approach that recognises the inherent value of feeling resilient. Kohn (2014, p. 15) has pointed to the evidence in psychological literature that “an individual’s perceived sense of control over life events and over him- or herself can have a strong positive effect on both physical and psychological well-being”. I will explore this notion further below in my attempt to construct a theoretical framework of resilience for relationally vulnerable dependency-workers.

Towards a Theory of Resilience for Dependency-Workers In this section, I turn to the more specific question of how resilience can be promoted for dependency-workers. I aim to put forward a more detailed and sustained analysis of resilience than currently exists in the literature, addressing some of the critique that vulnerability theory in its current form tends to generalise resilience (see Lotz 2016). I will then apply this theoretical framework to various hypothetical legal solutions to relational vulnerability

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in Chapter 7 with the aim of evaluating their ability to promote resilience for dependency-workers. I make three core theoretical claims in relation to the project of achieving resilience for dependency-workers. The first is that resilience itself is inherently relational, and that a resilient individual is someone situated within a supportive and empowering relational network. As I stress, the state, rather than the individual, bears ultimate responsibility for governing and structuring this relational network and ensuring that it is supportive. Second, and in common with Fineman, I argue that resilience promotion should be underpinned by a goal of achieving substantive equality across populations. Thus, in this context, state measures need to increase the status afforded to dependency-work so that it is regarded as equal in importance and worth to economic work, addressing the fact that dependency-workers are currently harmed by their low social status. Third, I argue that resilience also consists of a psychological dimension, in the feeling that one is resilient, which calls on the state to promote dependency-workers’ self-determination and relational autonomy.

Resilience as Relationality Resilience against our inherent embodied vulnerability is achieved through supportive and empowering relational structures. As I argued in Chapter 2, the fragile and embodied human condition leaves the vulnerable individual susceptible to various harms throughout the life course. Some of these are inevitable, such as the gradual process of bodily decline that comes with ageing. Others are unforeseen, such as accidents and illnesses that can weaken the body and render the individual dependent on care from those in her relational network. Inherent vulnerability consists of the human inability to change this temporal dynamic. However, through gaining access to the resources that engender resilience, humans can live with their vulnerability and prosper, despite the inevitability and unpredictability of future harm and bodily deterioration. Because the human condition is inherently fragile and liable to be punctuated by periods of increased dependency on others, humans need to exist within relational networks and are embedded in a variety of interpersonal and institutional structures, ultimately controlled by the state (Fineman 2017). We are constantly dependent on those around us throughout our lives but, at times, this dependency is intensified to the extent that our survival would not be possible were it not for the work of others in ensuring that our most basic of needs are met. Even at times of relative physical strength, we remain

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reliant on a variety of state institutions for our lives to function effectively, including employment laws, the provision of public services, and the legal regulation of access to a secure space that we can make our home. This extensive and intertwined network of individuals and institutions determines how we live with our inevitable vulnerability and cope with the potential adversity that it brings (Fineman 2017). Our strength is largely drawn from the relationships we have with other individuals and with the state’s institutions. A supportive and empowering relational network can enable us to avoid or withstand harms that may otherwise befall us. Conversely, our network may be an unsupportive one that potentially exacerbates our existing inherent vulnerability and may also cause us various additional harms that we would not suffer otherwise (Mackenzie et al. 2014). As I explained in Chapter 1, the dependency-worker’s relational vulnerability explored in this book is simultaneously a form of ‘more-than-ordinary’ vulnerability (in terms of being exposed to harms over and above those attributable to the human condition) and a reduced level of resilience against her embodied vulnerability. The dependency-worker, like all of us, is dependent on her relational network to cushion and protect her against the harshness and uncertainties of the human condition. However, instead of providing support, the dependency-worker’s relational network is frequently structured in such a manner that it produces additional harms (the economic, emotional, and spatial harms that constitute relational vulnerability). Furthermore, she is not provided with the resources needed to withstand the impact of her embodied vulnerability. This can be seen when analysing relational vulnerability’s temporal structures, which reveal that the dependency-worker is particularly susceptible to future harms during times when she is likely to require additional resources and support for her ageing body, but these will be unavailable due to her previous dependency-work. Paradoxically, the dependency-worker’s relational vulnerability arises because her work helps to provide resilience for others within her relational network. Whereas the structures of the private conjugal family may operate to the dependency-worker’s disadvantage, this is not so for all other family members. Where dependency-work is unequally shared between a couple, the breadwinner partner draws a very substantial benefit from the dependencyworker’s economic sacrifice. It is only due to the dependency-worker’s efforts that the breadwinner is able to emulate the autonomous liberal ideal who can pursue a career that is largely unencumbered by domestic responsibilities. Equally, for dependants within the family, be they children, disabled or elderly family members, the private family, largely through the endeavours of dependency-workers, ideally provides a degree of resilience and support

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needed to deal with their inherent embodied vulnerability. Therefore, the private family, as an institution, has the potential to be resilience-enhancing in terms of offering support and care. The problem is that this resilience is currently unequally distributed between its members to the extent that some members suffer harms over and above their ordinary embodied vulnerability as a result. With the assistance of the responsive state, these existing inequalities must be rebalanced, and the additional harms must be reduced or eliminated. The relationality of resilience means that any proposed legal or policy reform should aim to rebalance the dependency-worker’s currently unsupportive network of relationships. Her relationships must aim to support and empower rather than devalue and marginalise her. This extends to identifying underlying normative commitments to the structuring of the relational framework. I focus predominantly on the relational context where these inequalities are most apparent—the heterosexual family, which is still by far the most common family form in the UK. However, this should not be read as an attempt to exclude from view other relationships and kinship ties that fall outside of this dominant paradigm. As I have previously stressed, I am not suggesting that unequal role divisions and resultant relational vulnerability occur exclusively within heterosexual relationships. However, the gendered and heteronormative construction of dependency-work as women’s work, and, within the dominant family ideology, heterosexual women’s work, means that heterosexual relationships may be particularly susceptible to the generation of relational inequalities and vulnerabilities, echoing Auchmuty’s (2003, p. 174) argument that “intimacy is a factor in women’s vulnerability, but much more significant is the gendered dynamic of the heterosexual relationship”. What then should the state aim to achieve in its structuring of relational networks in order to empower dependency-workers? On a basic level, the state must aim to eliminate the more than ordinary harms and risks that dependency-workers currently experience. These have arisen as a direct result of the state’s choice to privatise and gender dependency-work, while promoting the unrealistic image of the autonomous liberal citizen, whose qualities can only be emulated by a few and even then, only for a limited time-period. Thus, as Fineman argues, the state must instead structure its institutions around the vulnerable legal subject, a person situated within a life course marked by fluctuations in bodily strength, and who is periodically helpless and dependent. It must also be acknowledged that the vulnerable subject is likely to be called on to perform dependency-work at various points

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throughout her life, which will require adequate support and assistance from the state. There are two distinct aspects that I believe law and policy needs to achieve in restructuring interpersonal and institutional relationships. The first is that dependency-work needs to be both revalued and redistributed. Dependencywork is as essential for society’s function as paid economic work. Its lack of value comes from its gendered sentimentalisation and removal from the public view by confining it to the private family. As I explored in the previous two chapters, dominant ideologies cast it as a labour of love, motivated by private affections and sentiments and therefore fundamentally incompatible with notions of economic recompense. However, the problem is not merely its perceived lack of worth, but its unequal distribution across populations where it is predominantly performed by women. As I will explore in the next section, even if the economic value assigned to dependency-work were to be elevated, its gendered nature still needs to be confronted. At present, only women are told that they cannot ‘have it all’ (see, e.g., Campo 2005), requiring a choice between economic pursuits and caregiving obligations. Thus, the equality element of resilience promotion must focus not only on equalising the perceived worth of dependency-work, but also equalising the burden of its performance. The second normative commitment relates to the internal component of resilience, namely how the individual herself perceives her place in the world and the choices she can make within the context of her network of relationships. This directly addresses the psychological elements of relational vulnerability discussed in Chapter 3—the feeling of a lower status and the reduced bargaining power experienced both within the family and in relation to the state’s institutions. This draws on some elements of the psychological definition of resilience discussed above, which are largely absent from the current vulnerability literature.

A Commitment to Equality: Revaluing Dependency-Work In responding to relational vulnerability, the state should strive to achieve equality between dependency-workers and their partners within the family unit. As I have discussed above, this must be a commitment to equality in a substantive rather than merely formal sense. In Chapter 4, I discussed how the law governing financial provision on divorce had sought to artificially raise the value of dependency-work by proclaiming it equal in value to economic work. However, as I argued there, while this drive towards equality

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has improved women’s post-divorce economic position, it has proved insufficient to achieve substantive equality, given that dependency-work, whether or not performed in the context of marriage, remains undervalued and heavily gendered. The greatest challenge for reform is to undermine and eventually erode the influence of the dominant individualistic ideology that underpins the legal and political systems, which promotes gendered family roles and the privatising of dependency-work. It is this ideology, with its conceptual distinction between the public and the private spheres, that ensures that dependency-work remains concealed within the folds of the family, designated primarily to its female members. By breaking down the assumptions promoted by the ideology, it is possible to see that the current veneration of paid work at the expense of dependency-work is illogical. Society is just as dependent on caregiving and domestic labour for its effective function as it is on economic work. Additionally, the two are intertwined rather than conceptually distinct, with success in the economic market often dependent on the worker’s ability to delegate responsibilities in the home to other family members. It is insufficient to simply proclaim that dependency-work and income earning are of equal value unless this is accompanied by various practical measures that affirm this. This raises an important preliminary question of whether it is in fact possible for dependency-work to be equal to paid work. Schultz has powerfully argued that it is only paid, mentally stimulating work that brings genuine equality and empowerment to women. As she argues: Unless we pay attention to the institutional contexts through which housework is valued and individual choice realised, stubborn patterns of gender inequality will continue to reassert themselves- including the gender-based distribution that is at the root of women’s disadvantage. Separatism will not suffice. (Schultz 2000, p. 1883)

Here, Schultz argues that caregiving and income earning are fundamentally incapable of being equal because paid work brings a greater sense of personal fulfilment. In her view, any policy that does not address the gender distribution of work in the home is insufficient. While I understand the sentiment behind her argument, I am cautious that Schultz’s represents a white middle-class view of work, where mentally stimulating and well-paid work is attainable. It does not take account of the large swathes of the population who work in menial, often unenjoyable roles, the main purpose of which is to provide the worker with an income, rather than personal fulfilment or a vocation. It is also, as Ertman (2002) has pointed out, somewhat dismissive

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to suggest that dependency-work cannot be a fulfilling occupation in itself. If one accepts that being a professional caregiver, e.g. a nurse, is a stimulating and fulfilling vocation, it is difficult to justify the argument that this cannot be the case for those who care for family members in the home. There is also a pernicious classed (and often also racialised) component to the aim of achieving equality through increasing workplace participation, as Schultz suggests. The reality is that dependency-work must be performed in order for humankind to survive, meaning that it can never be an option for all to avoid it in favour of seeking out more fulfilling labour. Both historically and in the present day, middle class, predominantly white, women have been able to escape the domestic burdens imposed by gendered ideologies by passing these on to women in less privileged positions, who do not have the option of delegating their own work (see Gordon-Bouvier 2019; HondagneuSotelo 2007). Therefore, it is dangerous to posit increased access to paid work as the solution to gender inequality, for it will inevitably only benefit some of those who are currently disadvantaged and will further marginalise and harm others. Instead, we must address why a sector of the population (predominantly men and some privileged women) is currently being permitted to almost entirely evade necessary socially reproductive work in order to pursue self-interested economic goals. For instance, many men are able to become parents and enjoy the pleasures of family life, while performing a very small amount of the hands-on work of raising children or caring for adult dependents. They are permitted to merely ‘care about ’ others without carrying out the work involved in ‘caring for ’ them (see Ungerson 1983). Under the restrained state’s non-interventionist approach, this fact is not questioned or challenged and, indeed, discourses of formal equality often seek to conflate caring about with caring for, thus diminishing the latter’s importance (see Elizabeth et al. 2012). If a broader conception of personhood is to be embraced, whereby the individual is recognised as being both embodied and relational, attention must be turned to what the state should expect of its citizens and what measures it should take to enforce those expectations. Kershaw (2006) has highlighted that, while the state currently demands that all citizens should be engaged in economic work, unless they are financially supported by another individual, in which case the state will turn a blind eye so long as this support is ongoing but will stigmatise the individual should it come to an end. Whereas the state will sanction those who refuse to engage in economic activity, it will not take action to ensure that all citizens perform some aspect of the socially reproductive work necessary to sustain society. Instead, dependency-work is delegated to already oppressed members of society who

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are unable to exercise the freedom to ‘not care’. This highlights that the parameters of the existing debate must be shifted in order to enable meaningful reform rather than suggesting that dependency-workers abandon their obligations in favour of paid work. As Etzioni (1994, p. 63) has argued, “few people who advocated equal rights for women favoured a society in which sexual equality would mean a society in which all adults would act like men”. Kershaw (2006) has proposed that the state impose stricter measures to ensure that caregiving becomes a citizenship duty rather than an option. This would be a means of incorporating an ‘ethic of care’ (see Tronto 1993; Sevenhuijsen 1998) into citizenship or, rather, ensure that state understandings of personhood incorporate a caring element. In the same way that the state can sanction those who do not obtain paid work, there could be consequences for those who fail to take on a fair proportion of the burden of dependency-work. One way in which law reform could play a role is to make it extremely financially disadvantageous for individuals to delegate all the dependency-work to their partners by imposing economic sanctions ether during the relationship or in the event of its breakdown. As Ertman has argued: Making male partners pay their sweeties for homemaking labour might be a catalyst for… change, as it would allocate the cost of that labour to the primary wage earner rather than to the primary homemaker. Primary wage earners might be less enthusiastic about gendered specialisation of labour if they had to foot the bill for it. (Ertman 2002, p. 858)

On the one hand, Ertman’s approach appears to promote the use of privatised financial obligations and thus decentralising the state’s role, which is contrary to the core aims of vulnerability theory. On the other hand, individually felt consequences may nonetheless be a necessity, even in a responsive state, in order to create sufficiently unattractive conditions for role specialisation. Currently, there is little incentive for the burdens of dependency-work to be shared, as evidenced by men’s failure to perform an equal share, despite women’s hugely increased participation in paid work over the past halfcentury. This is especially true in the case of the unmarried family, where there are very few financial consequences for someone who benefits from their partner’s dependency-work when pursuing career opportunities. I will return to some of these issues in more detail in Chapter 7 when discussing hypothetical state solutions to relational vulnerability.

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Feeling Resilient: The State’s Duty to Promote Relational Autonomy To avoid the risk of paternalistic state actions and to address some of the psychological elements of relational vulnerability (which arguably arise due to a lack of autonomy and control), resilience needs an internal normative component in addition to the goal of substantive equality. In this section, I argue that the responsive state has a duty to maximise the dependencyworker’s autonomy, but that autonomy must be understood in a relational rather than an individualistic sense. Autonomy essentially amounts to self-determination—an individual’s ability and competence to make uncoerced choices and decisions about her life. Mackenzie (2014, p. 41) has argued that autonomy consists of two components, namely “the capacity to lead a self-determining life”, as well as “the status of being recognised as an autonomous agent by others” (emphasis in the original). As I discussed in Chapter 2, liberal individualistic accounts tend to treat the capacity to be autonomous as an innate and internal human quality rather than a process that is fostered through relationships. One of the most famous of these is Kant’s (1996) moral theory, which defines autonomy as an ability to self-govern and to live according to one’s own internal moral law. Thus, respecting and promoting autonomy necessarily involves restraining and preventing any potential encroachment on self-governance, whether from the state or other individuals (see Nozick 1974). The liberal interpretation of autonomy is highly problematic for feminist and critical scholars, as I have emphasised throughout this book through my critique of the state’s promotion of the autonomous liberal subject. Individualistic theories of autonomy presume that all persons are born free, possessing powers of self-determination (Barclay 2000). As I argued in Chapter 2, this is based on the flawed view of personhood that ignores the embodied, interdependent, and relational nature of humanity. In presuming that autonomy is innate, it overlooks the extent to which it can only be fostered and developed through socialisation and connections with others. Furthermore, where liberal theories of autonomy do recognise the need for the individual to be regarded as autonomous by others, they have translated this into a requirement for state restraint in order to not encroach on autonomy (Stoljar 2017). Recognising an individual as an autonomous being thus translates into non-intervention rather than requiring positive action from the state. Fineman is deeply critical of the language of autonomy, arguing that it is a hollow notion that turns attention away from the state and its institutions, operating to blame the individual for her own hardship (Fineman

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2004, p. 41). Thus, she appears to reject it as a guiding normative goal for the state’s response to vulnerability. However, so-called relational autonomy theorists, most notably Mackenzie (2014), have criticised Fineman for relying only on the narrow, Kantian version of autonomy in her dismissal of the concept (see also Lotz 2016). Mackenzie and Stoljar (2000, p. 4) have argued that autonomy itself is not incompatible with recognition that “persons are socially embedded and that agents’ identities are formed within the context of social relationships and shaped by a complex of intersecting social determinants, such as race, class, gender and ethnicity”. Relational autonomy theorists reject the liberal view of autonomy as an inborn condition, arguing that it is fostered through the individual’s relationships with others, including the state and its institutions. As Nedelsky (2011, p. 118) argues, “autonomy is made possible by constructive relationships- including intimate, cultural, institutional- all of which interact”. Under the relational account, the state plays a fundamental role both in recognising the individual as being autonomous and having the capacity to make choices, and in providing the material and relational conditions necessary for autonomy (Nedelsky 1993). Relational autonomy is thus a considerably more comprehensive and realistic concept than internal liberal accounts and not incompatible with the aims of vulnerability theory. It recognises that proclaiming that all individuals are inherently autonomous is meaningless if not all are provided with the capacity and means to be able to live an autonomous life. Rather than regarding all intimate relationships as a potential threat to individual autonomy, relational theorists argue that an individual can be autonomous, even if her choices and decisions are always influenced and affected by her interpersonal connections and her status within her network of relations. At the same time, it acknowledges that there are certain relationships that can be actively harmful to autonomy, such as those where there is a substantial power imbalance between the parties (Mackenzie et al. 2014, p. 9). As Nedelsky (2011, p. 123) argues, the purpose of a relational approach is not to argue for the preservation of all relationships, but to distinguish between those that help to foster autonomy and those that do not. By contrast, liberal theory’s internalist account is unable to make this distinction, as it would primarily be concerned with whether the individual exercised free choice in entering the relationship. For example, Oshana (1998) has warned that internalist accounts would seem to permit states of being such as voluntary slavery and subservience, which are oppressive and contrary to autonomy, provided that the individual freely chooses them. What, then, would a commitment to relational autonomy mean in terms of fostering resilience for dependency-workers? It is important to note that

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relational autonomy is a means by which resilience (in the form of external resources) can be measured rather than by itself constituting resilience. Its purpose is to ensure that the dependency-worker’s relationships are empowering and constructive; a means of being able to distinguish between positive and negative relational settings. If dependency-worker autonomy is to be fostered, a key aim of legal reform must be to promote self-reliance and to eliminate negative relationships of dependency. Self-reliance should not be confused with the neoliberal expectations of economic self-sufficiency that I have critiqued throughout this book. The inherent relational nature of humanity means that complete self-sufficiency is always an impossibility. We are all dependent on others in some way, no matter how atomistic we perceive ourselves to be. Those who are employed rely on their employers, whereas self-employed individuals are dependent on staff, clients, and customers. However, the neoliberal restrained state ensures that the dependency-worker’s reliance on those in her relational network becomes a negative one. It deprives her of access to, and control of, resources; it disempowers her and leaves her without the power to make the choices that enable her to live a relationally autonomous life. Dependency-workers who are dependent on state benefits are also caught in an unhealthy relationship of dependency. They are regarded as having failed to attain the ideals of self-sufficient citizenship and are treated as a burden on the state. As well as being subjected to social stigma, welfare benefit claimants are subjected to significant scrutiny and intrusion in order to prove their ‘deserving’ status. Equally, where the dependencyworker is dependent on a partner’s income, this may leave her with reduced control over these resources and less of a say in how they are used. These negative relationships of dependency impede relational autonomy and can leave dependency-workers trapped in unhappy or harmful relational contexts (DeMaris and Swinford 1996). To break the existing patterns of negative dependency, any legal reform must prioritise the dependency-worker’s access to, and control of, resources in her own name. In turn, this will enable her to make choices that benefit her and those within her network of relationships. This will not render her invulnerable in an embodied sense, nor will it eliminate the responsibilities and obligations she has to others. However, having control over resources will permit the dependency-worker to feel able to choose how she organises her life, promoting an internal feeling of resilience. The normative commitment to relational autonomy enables a distinction to be made between positive and negative forms of state-controlled resource allocation. Means-tested welfare benefits, such as the ill-reputed UK Universal Credit system mentioned in Chapter 1, is a form of subsidy from the state, albeit one that provides

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only a minimal level of support. However, using a commitment to relational autonomy as a yardstick, it is easy to see how disempowering the welfare system is. Claimants are excessively scrutinised and stigmatised, faced with delays and uncertainties over the receipt of funds, many of which are not bureaucratic, but deliberately imposed by the state as a form of coercion and control. If they deviate from the state’s various demands (such as by missing a mandatory meeting or a telephone call), the response is to restrict access to resources by cutting off payments. Therefore, this is a form of state-based allocation of resources that does not provide resilience for those that it purports to assist. When considering relational autonomy, it must also be questioned whether dependency-workers can be truly autonomous until the current gendering and privatisation of their work are addressed. Ideologies of domesticity and caregiving, which construct dependency-work as a female endeavour tied to expected relational roles, restrict the choices that are available to women, particularly those in heterosexual relationships. While not all dependency-workers or caregivers are women, the difference is that men are not expected to perform socially reproductive work to the same extent that women are. There are indeed an increasing number of relationships where men perform a substantial share of housework and childcare, showing a softening of the historically rigid gendered roles of the separate spheres. If undertaking dependency-work were purely a matter of free choice, one would expect a more equal gendered distribution. I am not suggesting that the minority of men who do perform the majority of dependency-work in a relationship are completely free from external pressures to perform this work. There are undoubtedly many factors that influence a person’s decision to undertake dependency-work, including financial considerations, love and affection for family members, and an absence of adequate state-provided services (see Harding 2017). However, for women, there is an additional coercive element in the form of the numerous socially constructed myths that paint them as inherently nurturing and self-sacrificing and which tie their identity to dependency-work. Women are required to choose between home-life and career in a way that men are not. While some women are in heterosexual relationships where the male partner undertakes the bulk of dependency-work, leaving them free to concentrate on their career, these overwhelmingly tend to be regarded as falling outside the norm (see e.g. Smith 1998; Lee and Lee 2018). Men thus have the advantage of not needing to negotiate their way to financial autonomy to the same extent that women do (e.g. by finding a partner who is prepared to sacrifice his career). Instead,

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society presumes that women will always ‘choose’ to put family commitments ahead of career ambitions. Therefore, while making more resources directly available to dependencyworkers is a necessary step towards achieving resilience, a commitment to relational autonomy in its fullest sense also requires a more equitable distribution of dependency-work. That is not to say that the decision to undertake should be an entirely free one. Nobody should be able to completely abandon their responsibility for others without consequences, as the current framework permits. The measures discussed above regarding making dependency-work a necessary part of responsible citizenship and financially penalising those who do not do their fair share will also be of relevance to the promotion of autonomy.

Temporal Aspects of Resilience Like vulnerability, resilience has an important temporal dimension. As I have argued in the previous chapters, a key gap in existing debates over relationship-generated disadvantages is the tendency to ignore the various temporal scales of dependency-worker disadvantage, confining its definition to the financial imbalances existing upon relationship breakdown and, increasingly, predominantly those which can be redressed within a relatively short period of time. I have emphasised that relational vulnerability is a condition that arises during the course of an intimate relationship and fluctuates throughout the dependency-worker’s lifetime. Therefore, resilience promotion must respond directly to the temporality of relational vulnerability. It is insufficient to confine it to remedies that are only available on relationship breakdown and which only enable vulnerability to be addressed in the short term. The legal frameworks currently governing the married and unmarried family are problematic in terms of their temporalities and are likely to exacerbate relational vulnerability. The restrained state is very reluctant to intervene in family life, which results in inequalities going unchecked as long as the family remains intact. In Chapter 4, I argued that the time frame of legal intervention following divorce is rapidly shrinking. The legal framework will only accept a relatively brief period of post-divorce hardship, beyond which it becomes the individual’s own responsibility to mitigate it rather than her former spouse’s. Nonetheless, married dependency-workers are more resilient than their unmarried counterparts. The legal regime under the Matrimonial Causes Act 1973 expressly refers to questions of future need, and the court’s

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power to order periodical payments and pension sharing mean that provision can be made in respect of future hardships. By contrast, property and trusts law is entirely retrospective, looking only to the parties’ past behaviour with no scope for considering their future positions. The state needs to fully acknowledge and respond to the realities of universal vulnerability and dependency. As I argued in Chapter 2, embodied vulnerability is a temporal condition. The human body is in constant flux, moving through various biological stages, some of which may render her helpless and dependent on others. The most significant of these is the ageing process, which will bring about inevitable decline and reduced capacity to conform to the neoliberal ideal of self-sufficiency. Throughout the life course, the vulnerable subject also faces constant risk of injury or illness. Thus, the material assets and other resources that constitute resilience must be capable of mitigating the impact of vulnerability not only in the present, but also protect against an uncertain future. Fineman’s (2017) reference to resilience’s cumulative nature is relevant here. The vulnerable subject must be permitted to accumulate resilience throughout the life course, enabling her to make provision for future episodes of decline. The dependency-worker is relationally vulnerable because she is prevented from doing this. Additionally, her work enables other family members to increase their own resilience at her direct expense. The private family as an institution provides insufficient protection for the dependency-worker, both during her relationship and upon its potential breakdown. If her relationship does break down, it will often be too late for her to begin amassing the resources she will need in older age. Legal principles based on formal equality (which exist both for married and unmarried couples) overlook the grossly unequal position the parties find themselves in. Thus, it is essential that state responses to promoted resilience for dependency-workers move beyond formal equality.

Conclusion In this chapter, I sought to address what I perceived to be a weakness in existing vulnerability accounts; the under-theorisation of resilience. While there is frequent reference to resilience in the literature, scholars have tended not to provide detailed explanations of what it means for an individual to be resilient. In developing a framework of relational resilience, I drew on the concept’s origins in social psychology, where it is defined as the ability to withstand hardship or to ‘bounce back’ from trauma. The psychological approach is focused on the internal and external processes involved in

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becoming resilient, although there is a divergence of approach in the literature as to what is required to acquire resilience. I then considered how resilience had been interpreted in diametrically opposed fashions in neoliberal rhetoric and vulnerability theory. Neoliberal conceptions of resilience equate it to invulnerability—it is constructed as the solution to the ‘problem’ of vulnerability. It is thought to lie within the ability of all persons to become resilient and those who fail to do so are blamed and stigmatised, while the neoliberal state remains restrained. By contrast, to the extent that vulnerability theory does engage with the meaning of resilience, it describes it as a set of external assets and resources that can mitigate, but not eliminate, embodied vulnerability. Vulnerability theorists strongly reject the notion that the individual bears responsibility for becoming resilient because the state controls and distributes the resources that constitute resilience. While I broadly agree with Fineman’s conception of resilience as external resources, I explained that the missing piece in her account was the lack of focus on the individual’s own perception of her resilience. While resource distribution must be driven by the state, it must also have clear normative commitments that enable critical evaluation of different potential responses. While Fineman’s goal of substantive equality is an important one, I believe that resource distribution must also aim to engender a feeling of empowerment in the recipient. Here, the rich and plentiful literature on relational autonomy can offer insights into how a commitment to self-determination is not inherently incompatible with acknowledging relationality and dependency. This also recognises the psychological elements of relational vulnerability, as discussed in Chapter 3. The dependency-worker is not merely relationally vulnerable because she lacks material resources. Instead, she is exposed to above ordinary harm due to a lack of status, both within the relationship itself and in a broader sense, as a citizen. Thus, I argued, the state should promote the notion of feeling resilient in its distribution of resources. Additionally, state responses must respond to vulnerability’s temporality, which is an aspect lacking in the current legal regulation of the private family, where legal responses are limited to a narrow window of time and ignore the dependency-worker’s potentially lifelong disadvantage. By locating resilience’s normative commitments, it becomes possible to evaluate different state responses in terms of their ability to address relational vulnerability. In Chapter 7, I consider three hypothetical ways that the state can address relational vulnerability, drawing on the theoretical framework that I have developed in this chapter.

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Fineman, M. A. (2004). The Autonomy Myth: A Theory of Dependency. New York: The New Press. Fineman, M. A. (2008). The Vulnerable Subject: Anchoring Equality in the Human Condition. Yale Journal of Law & Feminism, 20 (1), 1. Fineman, M. A. (2010). The Vulnerable Subject and the Responsive State. Emory Law Journal, 60 (2), 251. Fineman, M. A. (2012). Beyond Identities: The Limits of an Anti-Discrimination Approach to Equality. Boston University Law Review, 92, 1713. Fineman, M. A. (2013). Equality, Autonomy and the Vulnerable Subject in Law and Politics. In M. A. Fineman & A. Grear (Eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics. Farnham: Ashgate. Fineman, M. A. (2017). Vulnerability and Inevitable Inequality. Oslo Law Review, 4 (03), 133. Garthwaite, K. (2011). ‘The Language of Shirkers and Scroungers?’ Talking About Illness, Disability and Coalition Welfare Reform. Disability & Society, 26 (3), 369. Gordon-Bouvier, E. (2019). Crossing the Boundaries of the Home: A Chronotopical Analysis of the Legal Status of Women’s Domestic Work. International Journal of Law in Context, 15 (4), 479. Gordon-Bouvier, E. (2020). The Open Future: Analysing the Temporality of Autonomy in Family Law. Child and Family Law Quarterly, 32(1), 75. Harding, R. (2017). Duties to Care: Dementia, Relationality and Law. Cambridge: Cambridge University Press. Hondagneu-Sotelo, P. (2007). Doméstica: Immigrant Workers Cleaning and Caring in the Shadows of Affluence. Berkeley: University of California Press. Joseph, J. (2013). Resilience as Embedded Neoliberalism: A Governmentality Approach. Resilience, 1(1), 38. Kant, I. (1996). Kant: The Metaphysics of Morals (M. J. McGregor, Ed.). Cambridge: Cambridge University Press. Katz, M. B. (1990). The Undeserving Poor: From the War on Poverty to the War on Welfare. New York: Pantheon Books. Kelsen, H. (1957). What Is Justice? Justice, Law, and Politics in the Mirror of Science; Collected Essays. Berkeley: University of California Press. Kershaw, P. (2006). Care Fair: Choice, Duty, and the Distribution of Care. Social Politics, 13(3), 341. Klohnen, E. C. (1996). Conceptual Analysis and Measurement of the Construct of Ego-Resiliency. Journal of Personality and Social Psychology, 70 (5), 1067. Kohn, N. A. (2014). Vulnerability Theory and the Role of Government. Yale Journal of Law & Feminism, 26 (1), 1. Lee, J. Y., & Lee, S. J. (2018). Caring Is Masculine: Stay-at-Home Fathers and Masculine Identity. Psychology of Men & Masculinity, 19 (1), 47. Living Together Campaign (UK Government). Available at https://www.advicenow. org.uk/living-together. Accessed 2 August 2020. Lotz, M. (2016). Vulnerability and Resilience: A Critical Nexus. Theoretical Medicine and Bioethics, 37 (1), 45.

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Mackenzie, C. (2014). The Importance of Relational Autonomy and Capabilities for an Ethics of Vulnerability. In C. Mackenzie, W. Rogers, & J. Dodds (Eds.), Vulnerability: New Essays in Ethics and Feminist Philosophy. Oxford: Oxford University Press. Mackenzie, C., Rogers, W., & Dodds, S. (2014). Introduction. In C. Mackenzie, W. Rogers, & S. Dodds (Eds.), Vulnerability: New Essays in Ethics and Feminist Philosophy. Oxford: Oxford University Press. Mackenzie, C., & Stoljar, N. (2000). Introduction: Autonomy Refigured. In C. Mackenzie & N. Stoljar (Eds.), Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self. Oxford: Oxford University Press. Masten, A. S. (2001). Ordinary Magic: Resilience Processes in Development. American Psychologist, 56 (3), 227. Masten, A. S., & Coatsworth, J. D. (1998). The Development of Competence in Favorable and Unfavorable Environments: Lessons from Research on Successful Children. American Psychologist, 53(2), 205. Mullaly, R. P. (2007). The New Structural Social Work. New York: Oxford University Press. Murphy, L. B., & Moriarty, A. E. (1976). Vulnerability, Coping and Growth from Infancy to Adolescence. New Haven, CT: Yale University Press. Nedelsky, J. (1993). Property in Potential Life? A Relational Approach to Choosing Legal Categories. The Canadian Journal of Law and Jurisprudence, 6 (02), 343. Nedelsky, J. (2011). Law’s Relations: A Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. Newman, R. (2005). APA’s Resilience Initiative. Professional Psychology: Research and Practice, 36 (3), 227. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Oshana, M. A. (1998). Personal Autonomy and Society. Journal of Social Philosophy, 29 (1), 81. Reece, H. (2015). Leaping Without Looking. In R. Leckey (Ed.), After Legal Equality: Family, Sex, Kinship. Abingdon: Routledge. Rutter, M. (1987). Psychosocial Resilience and Protective Mechanisms. American Journal of Orthopsychiatry, 57 (3), 316. Scales, P. C., Benson, P. L., Roehlkepartain, E. C., et al. (2006). The Role of Developmental Assets in Predicting Academic Achievement: A Longitudinal Study. Journal of Adolescence, 29 (5), 691. Schultz, V. (2000). Life’s Work. Columbia Law Review, 100 (7), 1881. Sevenhuijsen, S. (1998). Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality, and Politics. London: Routledge. Smith, C. (1998). “Men Don’t Do This Sort of Thing”: A Case Study of the Social Isolation of Househusbands. Men and Masculinities, 1(2), 138–172. Southwick, S. M., Sippel, L., Krystal, J., et al. (2016). Why Are Some Individuals More Resilient Than Others: The Role of Social Support. World Psychiatry, 15 (1), 77.

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Stoljar, N. (2017). Relational Autonomy and Perfectionism. Moral Philosophy and Politics, 4 (1), 27. Tronto, J. C. (1993). Moral Boundaries: A Political Argument for an Ethic of Care. London: Routledge. Ungar, M., Brown, M., Liebenberg, L., et al. (2007). Unique Pathways to Resilience Across Cultures. Adolescence, 42(166), 287. Ungerson, C. (1983). Why Do Women Care? In J. Finch & D. Groves (Eds.), A Labour of Love: Women, Work and Caring. London: Routledge & Kegan Paul. Wagnild, G., & Young, H. M. (1990). Resilience Among Older Women. Journal of Nursing Scholarship, 22(4), 252.

7 Imagining the Responsive State

In Chapter 6, I argued that, while resilience cannot eliminate universal embodied vulnerability, the state can take measures to eliminate or drastically reduce the relational vulnerability that currently affects dependency-workers, which consists of increased susceptibility to economic, psychological, and spatial harms. In this final substantive chapter, I take a policy-focused approach, evaluating three different state responses to relational vulnerability. In doing so, I consider the extent to which each of them is capable of addressing economic, psychological, and spatial harms, and the extent to which each of them can be said to make the dependency-worker resilient, measured in terms of the normative aims of equality and autonomy promotion that I discussed in Chapter 6. The three responses are judicial redistribution of resources, state-paid subsidies for dependency-work, and modified community of property solutions. All three of the hypothetical responses in this chapter involve the allocation of resources to the dependency-worker and, as such, it can be said that they are all capable of promoting resilience to some extent. However, as I argue, the manner in which resource distribution takes place, the point in time at which it happens, and the discourses used to describe and frame it, all impact on the extent to which it empowers the dependency-worker and allows her to make choices within her network of relationships. The responses that I discuss are ‘realistic’ ones, by which I mean that they already exist in some form, either in this jurisdiction or in other countries. They are deliberately intended to be relatively moderate and workable solutions rather than excessively radical and idealistic ones that are liable to be dismissed as fanciful. Furthermore, it is important that I stress at the outset © The Author(s) 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7_7

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that I do not claim to have a complete solution to all of the existing problems that I have raised in this book. Rather, I hope that my analysis, which seeks to place the embodied vulnerable subject at its centre, will prompt a shift in how reform debates in this area are structured. This will need to involve acceptance from the state that it is its unequal structures, rather than the dependency-worker’s personal choices, that are the cause of relational vulnerability.

A Preliminary Question: Distinguishing Between Married and Unmarried Families Throughout this book, I have explored how the legal framework upholds the autonomous liberal subject as the norm, both in the case of the formal married or civil partnered family and the informal cohabiting family. I have argued that while married dependency-workers face economic, psychological, and spatial harms during the marriage and on divorce, their unmarried counterparts are even more exposed due to the absence of any legal remedy that could redress relationship-generated disadvantages. As yet, I have not directly addressed the question of whether a difference in legal treatment between formal and informal families is justified and whether, going forward, the state should continue to draw a distinction between the two. In this section, I will deal with this question briefly, as much of the debate lies largely beyond the scope of this book and has already been discussed at length in other literature (see, e.g., Barlow and James 2004; Gordon-Bouvier 2019; Douglas et al. 2009). There have been numerous calls for reform of the current legal position, with those in favour arguing that the law must provide legal remedies for cohabitants on separation, albeit not necessarily on the same terms as for married couples. The Law Commission of England and Wales’s 2007 report concluded that the current law was in need of reform, particularly for unmarried couples who have children (Law Commission 2007, para 2.103). It recommended a redistributive scheme that would redress any economic advantage or disadvantage that either party has experienced as a result of contributions (to include caregiving and other dependency-work) made during the relationship (Law Commission 2007). Thus, it represented less generous provision than that under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004, where the court is guided by the overarching principle of fairness, and where any outcome must be checked against a “yardstick of equality” (White v White [2001] 1 AC 596). Instead, the Law

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Commission’s proposed legislation was modelled on the Family Law (Scotland) Act 2006, which operates north of the border. The Scottish legislation allows cohabitants to make claims for financial provision upon relationship breakdown based on the applicant demonstrating that she has suffered economic disadvantage, or that her partner has enjoyed an economic advantage, as a result of her contributions to the relationship (s 28(2) Family Law (Scotland) Act 2006). Although the Law Commission’s recommendations received considerable support from the judiciary and the legal profession, they have never been implemented. The Labour government at the time had initially suggested monitoring the position in Scotland before making a decision. In 2011, the Conservative-led coalition government announced that it did not intend to take the Law Commission’s proposals forward.1 My position is that treating the married and unmarried family differently in the context of addressing the effects of unequal distribution of dependency-work is both unjustified and unfair. Therefore, the hypothetical state responses discussed in this chapter will be treated as being applicable to both married and unmarried families. The state justifies the current distinction between marriage and cohabitation by appealing to ideas of rational, individualistic personhood and state restraint. Cohabitants are described as having made an active choice to place themselves beyond legal regulation and, if the state were to intervene to provide more comprehensive legal remedies, this would represent an unjustifiable encroachment on autonomy. Deech (1980, p. 483), one of the most vocal critics of extending cohabitants’ existing legal rights, has argued that “there ought to be a corner of freedom for such couples to which they can escape and avoid family law”. Deech’s words also echo the liberal principle of separation between the public (and legal) realm and the private sphere. It also assumes that both parties, including someone who has compromised her career to perform dependency-work, embody the qualities of the hypothetical autonomous liberal subject. I am not denying that there are some couples where not formalising the relationship represents an ideological choice and a desire to avoid legal consequences. However, it is erroneous to assume that this is the case for all unmarried couples. Barlow and Smithson’s (2010) research found that, while there were some couples who remained unmarried due to ideological objections to marriage (although this may be less prevalent following the introduction of opposite sex civil partnerships), there were also a number of so-called uneven couples, where one partner wanted to marry but the other did not. They found that there was usually a disparity in economic status between the uneven couples. However, 1 Jonathan

Djanogly, Parliamentary Under-Secretary of State, Ministry of Justice, Written Ministerial Statement, 6 September 2011.

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the factor that made these relationships particularly problematic was the way that “psychologically, the contract between the parties is skewed in favour of the more financially powerful one” (Barlow and Smithson 2010, p. 341). As I argued in Chapter 3, there is a significant risk of power imbalance where the parties are economically unequal. Marriage offers some (albeit insufficient) protection to the financially weaker party but is largely dependent on the financially stronger party’s willingness to marry. To present cohabitation as always involving an active choice and then, always a jointly made one, is both simplistic and erroneous. Is should stress here that I am not suggesting that all cohabiting relationships are functionally identical to marriage (but nor do I believe that all marriages can be reduced to a single core). However, my focus on this book is limited to those contexts where the relationship produces disadvantages due to role specialisation. In this context, married and unmarried relationships are entirely functionally similar, in that the dominant gendered ideologies that designate dependency-work to female family members and absolve the state from responsibility operate similarly in the unmarried family context. For that reason, I consider Deech’s autonomy argument a weak and flawed one. Choices are always constrained by relational and societal context, so cannot be regarded as an entirely free one by liberal standards. Even if it were an entirely free choice to be a dependency-worker, it does not justify the state ignoring the numerous disadvantages that flow from the role specialisation that it encourages (and the corresponding advantages gained by being a breadwinner). The state draws a direct benefit from dependency-work, for which it must acknowledge and compensate the dependency-worker, no matter whether her relationship is formalised (Fineman 2004). Treating married and de facto relationships the same or similarly before the law is not an overtly radical suggestion. De facto regimes exist in many other jurisdictions, including notably Canada,2 New Zealand,3 and Australia.4 2 All

Canadian provinces have enacted legislation recognising the rights of de facto couples. In Canada, the eligibility requirements vary from province to province. Most require a minimum period of cohabitation (1 year in Newfoundland, 2 years in British Columbia, Nova Scotia, Saskatchewan, Prince Edward Island, and Northwest Territories, 3 years in Alberta, Manitoba, New Brunswick, and Ontario. Yukon merely requires some permanence to the relationship whereas Quebec does not state a minimum cohabitation requirement). Nearly all the provinces allow for the court to waive the time requirement if the parties have children together. 3 New Zealand treats married couples and cohabitants of over three years duration the same, according to the Property (Relationships) Amendment Act 2001, which amended the Matrimonial Property Act 1976. Under the Civil Union Act 2004, same-sex and opposite sex couples can also enter into a civil union, which provides the same legal remedies as under the marriage legislation. 4 Since 2009, Australian de facto couples have been able to apply under federal law for provision similar to married couples under the Family Law Act 1975 (other than in Western Australia, where separate legislation exists). There is a minimum cohabitation requirement of 2 years, which can be

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Response 1: Redistribution of Resources The first potential state response that I will consider is achieving resilience through the judicial redistribution of solely or jointly owned assets at the point of relationship breakdown. This is of course a familiar approach, as represents the main form of state response in many countries, including in England and Wales (where the family is married). In Chapter 4, I critiqued how redistribution was currently administered under English law in respect of the married family, noting its adherence to principles of liberal individualism and marginalisation of the dependency-worker. Although I build on some of the arguments that I raised in that chapter, my discussion in this section is more general, focusing on redistribution per se as a state response, rather than how it is currently applied.

Redistribution: Addressing Relational Vulnerability Although judicial redistribution may seek to individualise and privatise disputes between couples, it nonetheless constitutes action on the part of the state and the state retains a key role in the process. This illustrates Fineman’s (2012, p. 1729) argument that, even when it claims to be restrained, the state is present in the lives of its subjects. Legislative regimes regulating family property are an example of the state setting certain expectations as to the consequences of interpersonal relationships. While it may not constitute as ‘active’ a response as the other solutions discussed below, redistribution nonetheless has the potential to address imbalances and exploitations that have arisen as a result of the relationship. As I argued in Chapter 4, the shifts in how the dependency-worker has been depicted in the case law governing financial provision has also come to impact on her perception in wider society. A considerable advantage of redistribution as a response lies in its flexibility and ability to respond to individual circumstances. This will of course depend on the level of discretion afforded to the judiciary. Where the discretion is wide, as under the Matrimonial Causes Act 1973, judges have considerable scope to tailor remedies to the specificities of the case, responding to both current and future economic needs. While much lauded in liberal legal discourses, concepts such as certainty and predictability are less appropriate when dealing with the emotional complexity of human relationships (Barlow 2009). As I argued in Chapter 4, a key problem with the regime under the departed from if the parties have a child or if one partner made substantial financial or non-financial contributions to a property and serious injustice would result if an order were not made.

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Matrimonial Causes Act 1973 lies not in the black letter of the legislation, but in how it is interpreted and applied. Principles of autonomy, rationality, and self-sufficiency are promoted as the norm, while the dependency-worker is stigmatised for failing to live up to them. However, a redistributive regime that was explicitly centred around a hypothetical vulnerable subject could potentially promote resilience for dependency-workers, especially if it took full account of the future-related nature of relational vulnerability. Although there are of course inherent limitations (which I discuss below) to an approach that focuses predominantly on private individuals, there are also some aspects of relational vulnerability that require such an approach. As I explained in Chapter 6, the state currently permits the dependencyworker’s spouse or partner to gain a considerable advantage as a result of her work. The ability to pursue a career relatively unencumbered by caregiving and domestic obligations provides a lifelong benefit that also brings with it considerable resilience against inherent embodied vulnerability. While the vulnerability lens prompts interrogation of broader state structures rather than individuals, it must also seek to equalise access to resilience across populations. Part of the normative aim of the state’s response must be to foster substantive equality. To do so, it must bring to an end the current inequalities between those who perform dependency-work and those who do not. Redistribution can incorporate a potential punitive element for those who do draw a benefit from their partner’s work, framed in the language of compensation, signalling state disapproval of the income earner’s ‘free riding’. As I discussed in Chapter 4, although there has been limited recognition of this through the compensation principle in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the judiciary has avoided developing a compensation principle fully, preferring a rhetoric of personal choice. However, a responsive state that was structured around the existence of inherent vulnerability and dependency could conceivably take a more proactive approach, whereby a compensation principle was employed less restrictively.

Objections to Redistribution Despite its potential to redress relational imbalances, there are inherent limitations of a redistributive scheme, making it, in my view, an inadequate state response to relational vulnerability. The first is that redistribution tends to place direct responsibility for obtaining relief on the dependency-worker, as an application will need to be made for a court to consider the matter. This is a particular worry if the dependency-worker’s former partner is intent on avoiding payment, leaving her to pursue enforcement through the courts,

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often unsuccessfully. This also links to the discussion in Chapter 4 over the state’s restriction of genuine access to justice and its expectation that individuals resolve their own disputes, unless they can put themselves within the narrow category of ‘victim’. Privatised remedies are illusory if individuals do not have the means to pursue them. Pursuing a non-paying former partner, particularly in the wake of Legal Aid cuts, requires financial, educational, and emotional resources that the dependency-worker may not have access to. Even if a remedy is ostensibly granted, there may be subsequent problems with enforcement. For example, the failings of the mechanism for enforcement of child support payments in England and Wales have been described as a “national scandal” (Diduck and O’Donovan 2006, p. 12). The result of the state expecting parents to enter into private agreements for maintenance is that many single mothers have been left in poverty as a result of being unable to claim payments from the non-resident parent and denied assistance by an unsympathetic state (Bryson 2013). The under-reported aftermath of the landmark Canadian family law case, Pettkus v Becker [1980] 2 SCR 834, also provides a tragic illustration of the potential struggle involved in enforcing court orders, and the gap that often exists between the black letter of law and the way it is experienced by its subjects. When decided, Pettkus was hailed as a breakthrough for cohabitants in Canada, and a victory for women in particular. The case recognised Rosa Becker’s 50% interest in her partner, Lothar Pettkus’s, business as a result of her domestic contributions throughout their long cohabiting relationship. However, Mr Pettkus refused to honour the court’s judgement and, eventually, the half-share of the business was entirely swallowed up by legal fees. Six years after the Supreme Court case, Rosa Becker took her own life “in protest against an unfair legal system which had deprived her of justice and left her penniless” (Bowal 2009, p. 2). This tragic ending to the dispute illustrates that legal remedies can only be adequate if there is genuine access to justice and equality of arms between parties. Thus, if redistribution is to be the response to relational vulnerability, it must be accompanied by substantial additional resources supplied by the state’s institutions, including adequate public funding, a significant reduction in current court delays, and a more effective process for enforcing judgments. The other major limitation of redistributive schemes relates to the temporality of law’s intervention. I stressed in Chapter 6 that the state must respond to relational vulnerability not just at the crisis point of relationship breakdown, but potentially throughout the dependency-worker’s life. There is undoubtedly scope for redistribution to take greater account of future-related

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harm than it currently does. Its emphasis on self-sufficiency and termination of obligations at the earliest opportunity can exacerbate the economic, psychological, and spatial harm that the dependency-worker suffers. Therefore, this could be improved by a different approach. However, it is much more difficult to imagine how a redistributive regime would be of assistance while the family is intact. Even if liberal principles of non-intervention were challenged, it would be almost impossible to enforce any state-imposed sharing of assets without undesirable surveillance of the family unit. Therefore, at the point in time that law can intervene to correct inequalities, the damage can be irreversible. Although part of the problem with the current law is that English courts have been reluctant to extend the compensation principle, another issue is that compensation would not even be possible in many cases. Compensation is only a realistic option where the assets far exceed the parties’ needs and would therefore, even if applied more liberally, be restricted to the wealthiest families. For those of more modest means, it would be impossible to redistribute assets so as to mitigate the effects over a lifetime of compromising one’s earning capacity to perform dependency-work. As I noted in Chapter 3, levels of home ownership among younger generations is declining, with people taking longer to get on the housing ladder or failing to do so at all. Instead, it is likely that individual earning capacity will assume increasing importance, as capital assets struggle to provide the lifelong resilience they did in the past. My final objection to redistribution is that it does not, by itself, sufficiently challenge the ideologies that designate dependency-work as private, gendered, and sentimental. While it can ostensibly penalise the breadwinner partner for free riding on the dependency-worker’s labour and thus provide a disincentive to role specialisation, this does not seek to raise the perceived public value of dependency-work. Redistribution, even though it involves state action, inevitably casts the dispute as a private one rather than one in which the state has a stake. Where compensation is not possible due to limited assets, redistribution does not provide the dependency-worker with anything tangible in return for her efforts. For the dependency-worker who remains married or cohabiting, redistribution has no impact on the relational vulnerability that nonetheless affects her. For that reason, redistribution, even if reconfigured, represents an inadequate response from the state and does not make the dependency-worker resilient.

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Response 2: State Subsidy for Dependency-Work The second hypothetical state response that I consider is a system of financial subsidy, whereby dependency-workers (whether married or unmarried)5 would be paid a non-means-tested ‘basic income’ for their work. Such a system would involve a substantial departure from existing family law and policy, as it would address the dependency-worker’s relational vulnerability predominantly through direct state payments rather than through redistributing assets when family relationships break down. The state subsidy that I envisage also differs substantially to the existing welfare benefits system. The latter is means-tested and intended as a safety-net and a last resort. By contrast, basic income for dependency-workers would consist of statesanctioned payments for performing the socially reproductive labour that benefits the rest of society. As such, it would be more akin to the provisions under the Care Act 2014, which enables carers for disabled adults to apply to local authorities for an assessment to receive both financial assistance and respite from caring duties.6 While I focus predominantly on the income elements here, this could be supplemented with other measures, including those that could provide the dependency-worker with respite from the impacts of the second shift. While the political climate in the UK over the past decades has led to the state taking an increasingly restrained position with regards financial support for its citizens, the Nordic countries have embraced the concept of citizenship income to a much greater extent and provide useful guidance in terms of imagining how the scheme would work. One example that offers helpful insights is the well-publicised basic income trial in Finland in 2017–2018, whereby unemployed citizens received a monthly sum of 560 Euros for two years, irrespective of other income, and with no obligation on recipients to actively seek work (Kangas et al. 2020). The final results of the study were published in 2020 and reported largely positive outcomes, with basic income raising general satisfaction and sense of autonomy, as well reducing mental stress among participants (Kangas et al. 2020). The Nordic countries also provide ‘cash for care’ initiatives for parents of young children who choose not to make use of state-subsidised childcare provision (Ellingsæter 2012). State-run cash for care schemes in Norway, Sweden, and Finland enable direct

5I

also envisage that such a scheme would extend beyond the conjugal family context examined in this book. 6 I have not discussed the provisions of the Care Act 2014 in detail in this book. This is deliberate, as my predominant focus is dependency-work performed in the context of the private conjugal family, which is not covered by the Act.

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payments, typically representing around 10% of an average income, which can be retained by the family or used to purchase private care services.7 Across the political spectrum, there have been numerous arguments in favour of a basic income over the years. It has been posited as a way to reduce social problems of poverty and unemployment, fostering a stronger sense of citizenship, and justly redistributing resources among citizens (Van Parijs 2004; Atkinson 1996). While theories of universal basic income have tended to be gender-neutral (Robeyns 2001), feminists have argued that basic income schemes have particular potential for improving the social position of women and rewarding them for unpaid work in the home (see, e.g., McKay and Vanevery 2000; Pateman 2004). Importantly, Pateman (2004) has argued that state reward for women’s work can help to lift its status, thus potentially challenging its gendered distribution. Modified versions of basic income which specifically reward dependencywork and other social reproduction (rather than being payable to the whole population), such as cash for care initiatives have also had feminist support. The global feminist Wages for Housework initiative, active during the 1970s and 1980s, argued for state compensation for women’s work in in the household (see Federici 1975; Dalla Costa and James 1973). Additionally, as Fineman (2004, p. 47) has remarked, subsidy schemes can be justified on the basis that the state owes dependency-workers a collective social debt. She argues that performing socially reproductive work is a form of subsidy to the state and should therefore be directly repaid rather than the state resorting to schemes whereby financial dependency is hidden within the private family (Fineman 2004, p. 49). In this hypothetical scenario, I am envisaging an income that is only paid to dependency-workers rather than to the population as a whole. Although the Nordic cash for care initiatives are limited to caring for young children, a scheme could conceivably be extended to provide payments to those who look after older children or even adult dependents in order to cater for a greater breadth of dependency-work. This income could be paid directly to the person in the household with primary responsibility for dependencywork. Where the dependency-worker is also engaged in part-time work, the subsidy would be paid in addition to any other income.

7The Finnish scheme, Kotohoidontuki, was introduced in 1985 and is available in respect of children aged 1-3 (www.kela.fi [accessed 23 July 2020]). The Norwegian scheme, Kontantstøtte, was introduced in 1998 and is available for children aged 1–2 (www.nav.no [accessed 23 July 2020]). The Swedish scheme, Vårdnadsbidrag, was introduced in 2008 and is available for children aged 1–2 (www.forsak ringskassan.se [accessed 23 July 2020]).

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State Subsidy: Addressing Relational Vulnerability In many ways, state subsidy through a basic income scheme offers a compelling solution to many of the economic aspects of relational vulnerability. It would enable economic imbalances to be redressed during the course of the relationship, thereby directly addressing some of the issues of hidden poverty that I addressed in Chapter 3. As today’s dependency-worker is likely to be engaged in some form of paid work alongside her work in the home, state subsidy would provide her with additional funds and potentially offer her greater flexibility in combining her work with time spent with her family (see Craig 2008). Proponents of basic income have pointed to its potential to strengthen familial connections and relationships by reducing time spent at work (see Srnicek and Williams 2015). In the Finnish experiment referred to above, participants reported that the additional resources “had provided them with a larger variety of legitimate modes of participation outside of paid labour, such as informal care” (Kangas et al. 2020, p. 189). For the working dependency-worker, basic income could thus conceivably reduce the physical and psychological stresses of the ‘second-shift’ and increase the amount of available leisure time. By having greater access to funds during the relationship, the dependencyworker would be less reliant on her partner, reducing some of the negative patterns of dependency that prevent the dependency-worker from exercising financial autonomy. Basic income schemes can also address future-related economic vulnerability by providing payments towards the dependencyworker’s pension fund. An example of this is the Norwegian cash for care regime, Kontantstøtte, which enables parents who do not make use of stateprovided childcare to earn pension credit in order to mitigate against future disadvantages due to being out of the workforce.8 As I noted above, redistributive schemes rely on the couple having sufficient assets at the point of relationship breakdown for proper future-based provision to take place. Where the family does not have substantial capital resources, the court is unable to make substantial provision for the dependency-worker’s future (see Price 2009). A basic income regime that also provided deferred benefits in the form of pension credits would address future economic hardships and may also provide the dependency-worker with a sense of security through the knowledge that she will have sufficient resources in old age. As well as addressing economic vulnerability, basic income can also help alleviate the psychological aspects of relational vulnerability. The reduction 8 See

https://www.nav.no/no/person/pensjon/pensjonsopptjening-for-omsorgsarbeid (accessed 21 July 2020).

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in direct economic reliance between the dependency-worker and her partner can provide the former with a sense of satisfaction that she is making a contribution to the family finances, reflecting Pahl’s (1989) findings that even making a small financial contribution to the household brings psychological benefits. For dependency-workers who are reliant on the state following relationship breakdown, basic income avoids some of the many negative and stigmatising aspects of the current welfare benefits system and would seek to directly reward the dependency-worker for her work rather than labelling her dependency a burden or a failure. For instance, the participants in the Finnish basic income experiment reported an increased sense of well-being and social belonging, with the report noting that “the treatment group reported that they trusted other people and social institutions more than the control group” (Kangas et al. 2020, p. 188). It also noted that participants “had higher confidence in their future possibilities” (Kangas et al. 2020, p. 189), suggesting that some of the temporal aspects of relational vulnerability could be addressed through basic income.

State Subsidy and Resilience As detailed above, state subsidy in the form of a basic income addresses several areas of dependency-workers’ relational vulnerability, having the potential to mitigate both economic and psychological harms. It constitutes a much more radical response to relational vulnerability than the post-separation asset redistribution discussed above. State subsidy shifts the solution beyond the existing parameters of English family law. As such, it represents a paradigm of Fineman’s imagined responsive state, which restructures its existing institutions so that they respond to, rather than ignore, vulnerability. A state subsidy solution rejects the familiar language of privatised financial obligations between individuals, emphasising instead that it is the state that bears ultimate responsibility for addressing the inevitable dependencies that arise as a result of inherent embodied vulnerability. By centralising the state as the guarantor of resilience-generating resources, state subsidy challenges the restrained state myth by exposing and responding to dependencies and vulnerabilities rather than stigmatising and concealing them within the folds of the private family. Additionally, through openly rewarding the dependency-worker for her work, which has benefits far beyond the individual family unit, some of the perceived barriers between the public and private that dominate liberal theories and neoliberal political thought will be eroded. State subsidy ascribes an ascertainable economic value to homemaking work; an issue that both family and property law have struggled to

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do, even when adopting a discourse of formal equality. As Robeyns (2001, p. 92) argues, “a basic income will in an indirect way contribute to a financial revaluation of unpaid work which might also help to increase the respect people show for this type of work”. If rates for the work are set by the state, this also eliminates the need to look to the open market for the current rates paid to carers and domestic workers, which in themselves, reflect the low social status of dependency-work (see Herring 2013, p. 103). State subsidy does not merely potentially alter the negative dynamics of dependency between the dependency-worker and her financially stronger partner, but also impacts on the dependency-worker’s wider relationship with the state. This therefore addresses the issue discussed in Chapter 3, namely that relational vulnerability does not merely result from intra-relational inequality but also from the dependency-worker being labelled a failure by the state. Conversely, state subsidy, framed in terms of a citizen’s income, recognises the public value of dependency-work, thereby challenging the liberal and neoliberal division between private and public (see Ackerman and Alstott 1999). There is also scope for state subsidy regimes to reconceptualise what it means to be a responsible citizen. As I have argued throughout the book, neoliberal citizenship is currently configured around the importance of individual responsibility and financial self-sufficiency. By contrast, the restrained state places little to no value on the supportive work that enables some citizens to display the illusion of being self-sufficient. By recognising responsibility for inevitable dependency and social reproduction as a fundamental part of citizenship, there is some potential for this work to gain wider social status and importance (Craig 2008). State income programmes offer new possibilities in terms of trying to achieve equality in terms of the dependency-worker’s status rather than mere equality of economic outcome (the latter of which usually fails to fully address the full extent of the dependency-worker’s vulnerability). They also have the potential to enhance relational autonomy by providing the dependency-worker with the opportunity to make meaningful choices within her relational context. Above, I have discussed the benefits to the dependencyworker of having increased access to, and control of, her own resources. Additionally, the provision of resources during the relationship, rather than simply upon its end, also has an additional dimension from a relational autonomy viewpoint, in terms of the decision whether to remain in a relationship that does not serve her well. As Pateman (2004, p. 97) argues, basic income schemes “allow individuals more easily to refuse to enter or to leave relationships that violate individual self-government or that involve

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unsafe, unhealthy, or demeaning conditions”. Here, state subsidy has a significant advantage over redistribution, because the latter does not address the problems of economically dependent dependency-workers remaining within harmful or unhappy relational contexts due to a lack of opportunity to be self-sufficient.

Objections to State Subsidy Despite its numerous positive features, I do nonetheless have some reservations about state subsidy’s ability to fully address the dependency-worker’s relational vulnerability and make her resilient. My concerns largely relate to its ability to bring about a genuine equality of status for the dependencyworker, which is one of the normative commitments of resilience that I discussed in Chapter 6. As I argued above, state subsidy certainly goes some way in terms of elevating the dependency-worker’s citizenship status and can highlight the public benefit of dependency-work. However, I have some doubts about whether it could ever truly equalise the position of dependencyworkers and income earners to the extent that caring for others and for the home is seen as a viable pursuit for both sexes. Currently, dominant gendered ideologies encourage women into accepting the performance of dependencywork as part of their societal and relational role, thereby enabling the state to remain restrained. If the status of this work is not sufficiently raised, there is a danger that the existing gender division could become entrenched, or even worsened, by state subsidy. As discussed, the increasing state expectations of economic self-sufficiency means that a growing number of women work outside the home in addition to performing the majority of the dependencywork within it. As I argued in Chapter 3, this dual role creates considerable psychological pressure and depletes the dependency-worker’s leisure time. Nonetheless, women’s financial autonomy has undeniably improved (albeit not to the extent of fully eliminating reliance on male partners where the couple has children) through their increased presence in the workplace (see Price 2009). This is to be encouraged and promoted rather than reversed. If the state instead offers payments for staying in the home and this remains less financially lucrative than undertaking paid work (which seems inevitable), there is a risk that it could have the side effect of further encouraging role specialisation. The idea of basic income would appear on first glance to belong to the political left, especially given its contrast to the current minimalist state that continually seeks to minimise its financial liability towards its citizens. However, as Ellingsæter (2012, p. 8) has remarked, the Nordic cash

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for care schemes were all introduced by centre-right parties and have been subject to considerable public criticism from the centre-left parties, largely on the basis of their risk of promoting gender inequality. While the Swedish, Finnish, and Norwegian initiatives are ostensibly gender-neutral, their uptake is incredibly gendered, with the vast majority of claimants being mothers (Nelander 2007). Were such a scheme to be introduced in the UK, considerable efforts would need to be made to ensure that uptake was spread equally between men and women. Another concern is that a substantial proportion of claimants come from low-income, low education, or immigrant backgrounds, while Scandinavian women in higher paid jobs tend to continue working after having children (Ellingsæter 2012). Finnish research suggests that an increasing number of women are becoming stay at home mothers, and that claiming state payments does not really represent a genuine choice between caregiving and paid work (Haataja and Nyberg 2006). Thus, the lessons from the research seem to be that basic income is unlikely by itself to lead to gender equality, even if it may temporarily enhance dependencyworkers’ position. It needs to be accompanied by further measures, including reforming employment practices to enable dependency-work to be better combined with income earning. Furthermore, as I argued in Chapter 6, promotion of resilience does not merely consist of the state providing material resources to the relationally vulnerable dependency-worker but should also seek to redress intra-relational inequalities that have arisen as a result of role specialisation. As I argued above, the dependency-worker’s work enables her partner to pursue career opportunities and make provision for future financial security, relatively unburdened by domestic obligations (Charlesworth and Ingleby 1988, p. 34). Because dependency-work is not ascribed a financial value, the income earner’s gain is normalised and is not questioned. Other than through earning capacity, two of the most significant ways in which an individual can attain long-term financial security and prosperity and therefore resilience against the impact of embodied vulnerability are through home ownership and pension contributions. The dependency-worker is restricted from participating in both of these. Home ownership enables the owner, over time, to make a very significant financial windfall. Regular state payments cannot match this windfall, even if they are paid over an individual’s lifetime. The Nordic cash for care schemes pay a very modest amount and, even if a scheme comprised higher payments, it is very unlikely that basic income would pay even the equivalent of a modest private sector salary. Despite the existence of a state income, those who undertake paid work will remain in a better economic position than dependency-workers and therefore income earning

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would presumably continue to have a higher status. Those earning high salaries would be relatively unaffected by the existence of a basic income scheme for dependency-workers (other than indirectly, in the form higher rates of taxation) and would therefore retain their privileged position. If paid work continues to have a higher status due to its greater economic rewards, it is doubtful whether basic income will address problems of the gendered distribution of dependency-work. Orloff (1990) has argued that, instead of positing basic income as the solution to gender inequality, political strategies must instead focus on changing the structure of both paid work and homemaking in order to avoid women effectively being pushed into specialising in homemaking (see discussion in Robeyns 2001). Equally, Craig (2008, p. 48) has remarked that, while basic income may give citizens the option not to work, “it would not necessarily give women the freedom not to provide care”. Finally, state subsidy addresses economic and psychological elements of vulnerability, but it does not by itself deal with the home’s pivotal importance to the dependency-worker. State subsidy would not directly address the issue of housing and the importance of ontological security and place-connection that I discussed in Chapter 3. A significant part of the dependency-worker’s relational vulnerability relates to the fact that she is at risk of the loss of her home, a place that is likely to have special importance to her. This is coupled with the fact that, in the UK, there is a significant difference between the rights of homeowners and the rights of tenants, something that is not as prevalent in other countries where tenants enjoy greater security (see Easthope 2014). If the dependency-worker continues to be excluded from long term and secure accommodation, she will remain vulnerable, despite receiving payments for her work. It may be that a solution could be provided in the form of long-term secure tenancies for dependency-workers as another form of subsidy, but there is a serious problem of a lack of social housing stock in this country. For that reason, I argue that basic income would need to be accompanied by further state measures in order to address all elements of relational vulnerability.

Response 3: Deferred Community of Property The final hypothetical response to relational vulnerability that I consider is a deferred and modified version community of property, which primarily seeks to address spatial harm by focusing the state response around property rights in the home. Community of property describes an ownership regime whereby, upon marriage or cohabitation, a couple’s assets become jointly owned, even if they were previously held in sole names (Cooke et al.

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2006). It exists in various guises in several jurisdictions, including South Africa, France, and the Netherlands. The extent of the community varies from regime to regime, with some excluding pre-acquired assets, gifts, or inheritance, and others including them within the community rules. Often, the state will provide options for a couple to contract out of community of property regimes through the use of prenuptial agreements or through choosing an alternative form of ownership (Cooke et al. 2006). Importantly, in its fullest sense, community of property extends to sharing liabilities as well as assets (Cooke et al. 2006). Therefore, creditors could pursue a debtor’s spouse if necessary. Community of property does not exist in England and Wales. Marriage or cohabitation by itself has no impact on property ownership, even if the property in question is acquired during the relationship. However, it is also the case that creditors cannot pursue a debtor’s spouse or partner for a sole debt unless she has agreed to guarantee the loan. Community of property can be either immediate or deferred in nature. An immediate scheme, such as that operating in South Africa, allows an individual to deal with her spouse’s or partner’s assets as if they were her own from the date of the marriage (see the Matrimonial Property Act No. 88 of 1984, s 15). Under the South African regime, one spouse cannot unilaterally dispose of or alienate community property without the consent of the other, unless the parties have contracted out of community of property. Deferred community of property on the other hand refers to schemes that only take effect when the parties divorce or separate and outline the rules for legal division of property. Under deferred schemes, such as that operating for married couples in Sweden, the fact of marriage or partnership will not have an immediate impact on property ownership, and an individual will not be able to deal with her spouse or partner’s solely owned assets as though they were her own. However, upon divorce or separation, each party will be entitled to a specified share. The hypothetical regime I consider here represents a modified and deferred version of community that would seek to reward dependency-work through reflection in ownership of the family home (and potentially other property owned by the parties). In cases where there has been no role specialisation, such a scheme could provide for a rule of equal division. However, where an applicant is able to demonstrate the existence of relational vulnerability as a result of undertaking a dependency-worker role during the relationship, there would be judicial discretion to award an enhanced compensatory share of the home or even an outright transfer (potentially with a modifier that it must not cause unjustifiable hardship to the other party). This could also be accompanied by judicial discretion to defer any sale to realise the parties’

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respective shares until such time that the dependency-worker could realistically find adequate alternative accommodation. This hypothetical scheme is partly based on a similar one for cohabiting couples put forward by Barlow and Lind (1999). The authors suggested a default position of equal shares in the home (after a minimum period of 2 years cohabitation) regardless of how legal title to the home was held between them. They also argued for judicial discretion to award an enhanced share (up to 75%) to those who could demonstrate economic vulnerability as a result of their dependency-worker role (Barlow and Lind 1999).

Deferred Community: Addressing Relational Vulnerability There is considerable merit in a remedy that places ownership of the family home at its centre, as it aims to directly address spatial harm, which is especially pertinent for unmarried dependency-workers. As I discussed in Chapter 5, cohabiting dependency-workers have a very precarious relationship to the family home, especially where the legal title is not jointly owned. Cohabitation by itself does not bring about a legal right to occupy the home,9 which can cause significant hardship to the non-owning dependency-worker if the relationship breaks down and she is asked to leave. A community of property scheme that grants rights of ownership, even if these are not realisable until at a future date, would go some way towards recognising the notion of ontological security and the extent to which an individual’s relationship to her home grounds her sense of identity and belonging in the world. For married dependency-workers, the Matrimonial Causes Act 1973 of course already permits the court to make a range of orders in respect of the family home, including the ability to defer its sale until the occurrence of a ‘trigger’ event, such as children of the family attaining majority (so-called Mesher orders, named after Mesher v Mesher [1980] 1 All ER 126). The court can also opt to defer sale until the death of the occupying spouse (the Martin order, after Martin v Martin [1978] Fam 12). Ostensibly, therefore, there already exist home-centred remedies for married dependency-workers and a deferred community approach will not bring about substantial change. However, research on the exercise of judicial discretion found that English courts were generally reluctant to make use of Mesher and Martin orders,

9 While

spouses have a statutory right to occupy the matrimonial home under s 30 of the Family Law Act 1996, which operates regardless of legal or beneficial ownership, this does not apply to unmarried couples.

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preferring a clean break (Miles and Hitchings 2018). Clearer rules concerning rights in the home, including the right to remain there upon relationship breakdown could therefore serve to strengthen married dependency-workers’ current position. Even if a property-based state response does not leave the dependencyworker better off in net asset terms than an ordinary redistributive scheme, I would suggest that there is a symbolic significance to expressly recognising the importance of the home as a centre of security and belonging. It is also conceivable that offering the dependency-worker long-term security could have psychological benefits in terms of enabling her to exercise a greater degree of financial and practical control over the home, even while the relationship subsists. As I discussed in Chapter 3, sociological research on ontological security suggests that ownership engenders particularly strong feelings of belonging and security (Saunders 1984). In particular, the temporal nature of home ownership as a long-term endeavour that promotes security may alleviate some of the dependency-worker’s concerns over an uncertain and precarious future if her relationship does break down (see Loxton 2005). This aspect was recognised by Cory J in the Canadian case Rawluk v Rawluk [1990] 1 SCR 70, where he explained that “[o]wnership encompasses far more than a mere share in the value of property. It includes additional legal rights, elements of control and increased legal responsibilities. In addition, it may well provide psychological benefits derived from pride of ownership”. On an economic level, there are also benefits to a remedy based around home ownership. Unlike other assets, land tends to appreciate in value over time and can therefore provide significant financial security for the future. It could therefore come closer to adequately compensating the dependency-worker for her economic sacrifice than other remedies would.

Deferred Community and Resilience A deferred community regime would involve a reconceptualisation of existing legal property rights. It must be remembered that private property itself is not inherent or pre-social, even if the classical liberal theories maintain that property law is apolitical (Fox-O’Mahony 2014). All regimes of legal property rights are ultimately created, reinforced, and given meaning by the state (Davies 2007, p. 42). They illustrate how the state distributes resilience creating resources across populations and the values that it seeks to promote in doing so. In English law, private property is distributed unequally, with clear preference given to those who can conform to the autonomous ideal of personhood. The current legal structures permit those who are owners to

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exercise power over those who are not, thereby creating a social hierarchy with owners at the top (Keenan 2010). A deferred community response could involve the reformulation of ownership in such a way as to place vulnerability, dependency, and the human need for ontological security at the forefront. By recognising that dependency-work may entitle one to a greater share in the home, it would move away from the current liberal tendency to believe that only individual self-sufficiency and wealth-maximisation can be the goals of a property regime. It therefore has potential to promote a more equitable distribution of resources, and proponents of community of property have noted its ability to combat women’s historical disadvantage (e.g. Buckley 2002, p. 40). To date, dependencyworkers have been marginalised by property law. Legal ownership is currently only available to those who can demonstrate that they possess the traits of the autonomous liberal subject. By shifting the parameters of what is required for ownership, the state would be communicating that dependency-work holds equal value to paid work. While redistributive schemes, especially when grounded in needs-based discourse, risk casting dependency-workers in the role of helpless victim, property carries considerable symbolic force, especially given its historical and current role as an indicator of responsible citizenship. Given the enhanced status that owners currently have, a property-based regime has potential to promote equality for the dependency-worker. Finally, deferred community can offer a level of certainty of outcome that is lacking from the current legal frameworks (Cooke et al. 2006, p. 35). Although judicial discretion can provide flexibility and individualised justice, the wider context in which law operates means that uncertainty is a distinct disadvantage to those who cannot afford access to the court system. Uncertainty of outcome means that the dependency-worker may not pursue remedies to which she is entitled, or she may feel pressure to accept an inadequate private agreement in order to settle the dispute without recourse to court. Of course, certainty should not be mistaken for rigidity. Deferred community of property schemes can, and do, include an element of court discretion (Cooke et al. 2006, p. 11). However, deferred community offers an improvement on the potentially unprincipled nature of redistributive schemes that fail to communicate in sufficiently clear terms that the state values dependency-work.

Objections to Deferred Community Perhaps more so than the other two imagined responses, deferred community of property is likely to be met with considerable mainstream opposition

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who regard it as unfair to the breadwinner within the relationship. While there may be tolerance of interfering with property rights to meet the needs of a former spouse or partner, a regime that awards enhanced property as of right to dependency-workers could be regarded as unjustified state interference with ownership rights, amounting to an infringement of autonomy or giving the dependency-worker ‘something for nothing’. This objection inevitably rests on a belief that economic contributions have value, whereas dependency-work does not. It is representative of the belief that dependencywork forms a natural part of women’s relational roles and is therefore devoid of economic worth. As I argued in Chapter 4, the discourse of ‘gold-digging’ that shapes many public discussions of family property policies argues that marriage presents an economic risk to men, who will be forced to pay out on divorce. However, this narrative overlooks the much greater risk that a person takes when she compromises her earning capacity to be a dependency-worker, resulting in an often-lifelong reduction in economic security. It is the dependency-worker, not the breadwinner, who is most likely to be adversely affected by relationship breakdown, but media headlines would have us assume that it is the opposite. In any event, concerns about injustice for property owners could conceivably be dealt with by a residual judicial discretion to adjust awards where they would otherwise result in manifest unfairness. However, giving an economically stronger party a substantially smaller share of capital assets is not by itself unfair (Herring 2005). The other substantial drawback to deferred community, preventing it from being a complete solution to relational vulnerability, is that it does not cover cases where the couple does not own their home. As I have noted, home ownership is being placed increasingly out of reach due to higher house prices, increasing student debts, and stagnant wages. This is likely to have an impact on the future demographic of couples, where there will be an absence of substantial assets available for sharing. Where couples do own a home, it may be heavily mortgaged, meaning that its net value is insufficient to provide long-term security for the dependency-worker. While there has been a boom in house prices over the past 20 years, resulting in considerable windfall wealth to owners, this rate of capital growth is unlikely to continue over the longer term. Nor does a home-based solution meet the dependencyworker’s day to day financial needs, either during the relationship or upon its breakdown. It would therefore need to be accompanied by other state initiatives, such as a basic income scheme, and would be unable on its own to redress all aspects of relational vulnerability.

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The Need for a Holistic Approach As the above discussion has highlighted, all three hypothetical responses are capable of addressing relational vulnerability to some extent. It is also clear that none of them alone is capable of fully eliminating the current structural inequalities that result from the state’s privileging of economic self-sufficiency and rationality. However, I will make some brief general observations about the potential way forward. In my view, of the three responses, state subsidy offers the most compelling solution to the problem because it involves a radical rejection of privatised means of correcting relational imbalances. It involves a state that is genuinely responsive to the realities of vulnerability and dependency. As I argued in Chapter 6, there needs to be reform on a broad scale if the dependency-worker’s position is to be elevated in a genuine sense. State responses that frame the issue as a private one between two individuals fail to go far enough. State subsidy is also the only response of the three that would involve some measure of intervention and support from the state while the relationship subsists, whereas the other two would realistically only become applicable upon relationship breakdown. A large problem with the current legal frameworks governing marriage and cohabitation is that the state remains restrained until the relationship ends, by which point many relationship-generated disadvantages have become entrenched and can be reversed only with difficulty. State subsidy faces a potential issue in terms of needing to avoid entrenching existing gender roles by turning dependencywork into a (low) paid profession dominated by women. Ideally, of course, dependency-work needs to be more evenly distributed across the population and as much a part of ideal citizenship as economic activity. It would therefore be necessary for state subsidy to be accompanied by other measures for reorganising state institutions, such as stronger employment protections, better provisions for flexible working and carer leave, and shorter working days (see Smith 2014). At the same time, the state cannot ignore the inequality that occurs when the dependency-worker’s partner draws a direct benefit from being unburdened by dependency-work. Although proprietary and redistributive remedies are framed as private disputes between individuals, they do have a role to play in terms of correcting the injustice that would otherwise occur if the dependency-worker’s partner were to be allowed to draw full benefit from her labour without consequences. The problem with the current regime is that privatised solutions to relationship-generated disadvantages are the only state response, and they are framed in such a way as to reinforce autonomy

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and self-sufficiency as the norm. However, individualised responses in combination with state subsidy would represent a more attractive approach. As I explain above, I am more persuaded by a deferred community of property response than discretionary redistribution, due to the former’s recognition of the psychological and security benefits of home ownership. A secure home offers considerable resilience, especially in terms of protecting against future-related hardships. However, I am conscious of the fact that not all families are homeowners and in order to promote ontological security for all dependency-workers, the state would also need to make substantial reforms to housing law and policy, offering greater access to suitable accommodation that would be accompanied by genuine security of tenure.

Conclusion In this chapter, I sought to evaluate three different hypothetical state responses to vulnerability, using the framework for relational resilience developed in Chapter 6. My aim was not to find a definitive solution, but rather to examine how the different responses impacted on the dependency-worker’s relational vulnerability. For each response, I addressed a number of issues, including how the regime sought to respond to relational vulnerability, to what extent it promoted resilience for the dependency-worker, and whether there were any limitations that prevented it from being a workable solution. As I argued, all three responses had potential drawbacks. As a result, none would be sufficient as a sole or complete solution to the current problems faced by the dependency-worker. However, each was capable, to some extent, of addressing aspects of economic, psychological, and spatial harm. Therefore, if elements of them were combined with other initiatives, they could form part of a broader state commitment towards revaluing dependency-work. As I pointed out, realistically, a broad combination of measures is likely to be required in order to challenge the existing myths and meaningfully restructure the dependency-worker’s relational network. This reflects Fineman’s core argument that reform needs to take place on a large scale; fundamentally challenging the erroneous assumptions about personhood that define the neoliberal state. The hypothetical autonomous liberal subject that currently dominates the legal framework needs to be replaced by the relational, embodied, vulnerable legal subject (Fineman 2013, p. 636). Nonetheless, I stressed at the outset of the chapter that I had deliberately selected realistic state responses. For instance, I have not suggested or discussed measures such as calling for the abolition of the nuclear family and

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collectivising dependency-work, as some feminist academics have advocated (e.g. Lewis 2019). Without entering into a debate over the desirability of such a measure, I believe that vulnerability theory needs to retain an element of ‘workability’ that can gain public and political support and lead to necessary changes. While utopian visions of a better future can be attractive on an abstract or academic level, they are unlikely to gather sufficient mainstream endorsement to be a viable option.

Bibliography Ackerman, B., & Alstott, A. (1999). The Stakeholder Society. New Haven, CT: Yale University Press. Atkinson, A. B. (1996). The Case for a Participation Income. The Political Quarterly, 67 (1), 67. Barlow, A. (2009). Legal Rationality and Family Property: What Has Love Got to Do with It? In J. Miles & R. Probert (Eds.), Sharing Lives, Dividing Assets: An Interdisciplinary Study. Oxford: Hart. Barlow, A., & James, G. (2004). Regulating Marriage and Cohabitation in 21st Century Britain. Modern Law Review, 67 (2), 143. Barlow, A., & Lind, C. (1999). A Matter of Trust: The Allocation of Rights in the Family Home. Legal Studies, 19 (4), 468. Barlow, A., & Smithson, J. (2010). Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform. Child and Family Law Quarterly, 22(3), 328. Bowal, P. (2009). A Famous Case Revisited. Law Now, 33(3), 1. Bryson, C. (2013). Kids Aren’t Free: The Child Maintenance Arrangements of Single Parents on Benefit in 2012 (Nuffield Foundation). Available at https://www. gingerbread.org.uk/wp-content/uploads/2018/04/Kids-aren%E2%80%99t-freeThe-child-maintenance-arrangements-full-report.pdf. Accessed 3 August 2020. Buckley, L.-A. (2002). Matrimonial Property and Irish Law: A Case for Community. Northern Ireland Legal Quarterly, 53(1), 39. Charlesworth, H., & Ingleby, R. (1988). The Sexual Division of Labour and Family Property Law. Law in Context, 6, 29. Cooke, E., Barlow, A., & Callus, T. (2006). Community of Property—A Regime for England and Wales? (Nuffield Foundation/Policy Press). Available at https://www.reading.ac.uk/web/files/law/CommunityofProperty_Version 021106.pdf. Accessed 3 August 2020. Craig, L. (2008). Valuing by Doing: Policy Options to Promote Sharing the Care. Journal of the Association for Research on Mothering, 10 (1), 45. Dalla Costa, M., & James, S. (1973). The Power of Women and the Subversion of the Community. Bristol: Falling Wall Press. Davies, M. (2007). Property: Meanings, Histories, Theories. London: Routledge.

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Deech, R. L. (1980). The Case Against Legal Recognition of Cohabitation. International and Comparative Law Quarterly, 29 (2–3), 480. Diduck, A., & O’Donovan, K. (2006). Feminism and Families: Plus Ça Change? In A. Diduck & K. O’Donovan (Eds.), Feminist Perspectives on Family Law. Abingdon: Routledge. Douglas, G., Pearce, J., & Woodward, H. (2009). Cohabitants, Property and the Law: A Study of Injustice. Modern Law Review, 72(1), 24. Easthope, H. (2014). Making a Rental Property Home. Housing Studies, 29 (5), 579. Ellingsæter, A. L. (2012). Cash for Childcare. Experiences from Finland, Norway and Sweden (International Policy Analysis, Friedrich Ebert Stiftung). Federici, S. (1975). Wages Against Housework. Bristol: Falling Wall Press. Fineman, M. A. (2004). The Autonomy Myth: A Theory of Dependency. New York: New Press. Fineman, M. A. (2012). Beyond Identities: The Limits of an Anti-Discrimination Approach to Equality. Boston University Law Review, 92, 1713. Fineman, M. A. (2013). Feminism, Masculinities, and Multiple Identities. Nevada Law Journal, 13, 619. Fox-O’Mahony, L. (2014). Property Outsiders and the Hidden Politics of Doctrinalism. Current Legal Problems, 67 (1), 409. Gordon-Bouvier, E. (2019). Relational Vulnerability: The Legal Status of Cohabiting Carers. Feminist Legal Studies, 27 (2), 163. Haataja, A., & Nyberg, A. (2006). Diverging Paths? The Dual-Earner/Dual-Carer Model in Finland and Sweden in the 1990s. In A. L. Ellingsæter & A. Leira (Eds.), Politicising Parenthood in Scandinavia: Gender Relations in Welfare States. Bristol: Policy Press. Herring, J. (2005). Why Financial Orders on Divorce Should be Unfair. International Journal of Law, Policy and the Family, 19 (2), 218. Herring, J. (2013). Caring and the Law. Oxford: Hart. Kangas, O., Jauhiainen, S., & Simanainen, M. (2020). Suomen Perustulokokeilun Arviointi [Evaluation of the Finnish Basic Income Experiment]. Available at https://julkaisut.valtioneuvosto.fi/handle/10024/162219. Accessed 3 August 2020. Keenan, S. (2010). Subversive Property: Reshaping Malleable Spaces of Belonging. Social & Legal Studies, 19 (4), 423. Kontantstøtte (Norwegian Childcare Payment System). Available at https://www. navi.no. Accessed 23 July 2020. Kotohoidantuki (Finnish Childcare Payment System). Available at https://www.kel a.fi. Accessed 23 July 2020. Law Commission. (2007). Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No. 307). London: The Stationery Office. Lewis, S. (2019). Full Surrogacy Now: Feminism Against Family. London: Verso Books. Loxton, D. (2005). What Future?: The Long Term Implications of Sole Motherhood for Economic Wellbeing. Just Policy: A Journal of Australian Social Policy, 35, 39.

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McKay, A., & Vanevery, J. (2000). Gender, Family, and Income Maintenance: A Feminist Case for Citizens Basic Income. International Studies in Gender, State & Society, 7 (2), 266. Miles, J., & Hitchings, E. (2018). Financial Remedy Outcomes on Divorce in England and Wales: Not a ‘Meal Ticket for Life’. Australian Journal of Family Law, 31(1–2), 43. Nelander, Å. (2007). Vårdnadsbidrag—En Tillbakagång i Svensk Familjepolitik [Carer Benefit—A Backward Step for Swedish Family Politics] (Arbetarörelsens Tankesmedja Report 5/2007). Orloff, A. (1990, April). Comment on Ann Withorn “Is One Man’s Ceiling Another Woman’s Floor?” Women and BIG. Paper presented at the Conference of the Basic Income Grant, University of Wisconsin-Madison. Pahl, J. (1989). Money and Marriage. London: Macmillan. Pateman, C. (2004). Democratizing Citizenship: Some Advantages of a Basic Income. Politics & Society, 32(1), 89. Price, D. (2009). Pension Accumulation and Gendered Household Structures: What Are the Implications of Changes in Family Formation for Future Financial Inequality? In J. Miles & R. Probert (Eds.), Sharing Lives, Dividing Assets: An Interdisciplinary Study. Oxford: Hart. Robeyns, I. (2001). Will a Basic Income do Justice to Women? Analyse & Kritik, 23(1), 88. Saunders, P. (1984). Beyond Housing Classes: The Sociological Significance of Private Property Rights in Means of Consumption. International Journal of Urban and Regional Research, 8(2), 202. Smith, O. (2014). Litigating Discrimination on Grounds of Family Status. Feminist Legal Studies, 22(2), 175. Srnicek, N., & Williams, A. (2015). Inventing the Future: Postcapitalism and a World without Work. London: Verso Books. Van Parijs, P. (2004). Basic Income: A Simple and Powerful Idea for the Twenty-First Century. Politics & Society, 32(1), 7. Vårdnadsbidrag (Swedish Childcare Payment System). Available at https://www.for sakringskassan.se. Accessed 23 July 2020.

8 Concluding Thoughts

At the outset of this book, I explained that I wanted to construct a theoretical framework of vulnerability that explained the disadvantaged position faced by those who perform dependency-work in the private family context. While the concept of relationship-generated disadvantage is to some extent recognised in English family law (albeit only where the family is married), it is understood in purely economic terms and as a consequence of private choices made by the couple as to how to organise their lives. There is little recognition of the role played by the state in its recognition and treatment of dependencywork and the consequences for those who perform it. Additionally, while the existing literature on universal vulnerability offered an attractive lens through which to analyse these issues, I also wanted to expand upon the theory, addressing some of its current limitations. In this brief concluding chapter, I draw out the key points of the arguments I have made throughout the book, before commenting on how recent global events have highlighted the urgency of reform.

The Vulnerability Perspective Law and policy are inevitably based around various assumptions about personhood. In this jurisdiction and many others, it assumed that ‘law’s person’ is rational, economically self-sufficient, and individualistic. These assumptions can be traced back to classical philosophical theories, which argue that human autonomy must be protected by the state. The latter must

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also assume a minimal role to avoid curtailing the individual’s rights to selfdetermination. The principles of the classical theories have been adopted by the political rhetoric commonly labelled neoliberalism, which describes policies that promote market freedom, economic self-sufficiency, and personal responsibility for one’s societal position (Harvey 2007). Neoliberalism is translated into legal systems through guiding principles such as freedom of contract, strong private property rights, and restrictive taxation (see Barlow et al. 2017). Vulnerability theory, as spearheaded by Professor Martha Fineman, is a growing movement among critical and socio-legal scholars that directly challenges the various assumptions of liberalism and neoliberalism. Fineman’s work has been particularly revolutionary in terms of casting off vulnerability’s traditionally negative connotations of victimhood and frailty. Vulnerability, Fineman (2008) argues, is a fact of life. As humans, we possess bodies that are fragile entities, constantly susceptible to harm and injury. At some points during the life course, we may also become directly dependent upon others to meet even our most basic needs. While liberal theories employ a Cartesian separation between the rational mind and the superfluous body (Grear 2011), vulnerability theory recognises the extent to which our embodied nature constitutes our very existence and the way that we experience the world. Furthermore, it argues that we are all socially and relationally embedded, existing within an extensive structure of interpersonal and institutional relationships that are controlled by the state (Fineman 2017). Law and policy that ignores this embodiment and embeddedness is harmful and discriminatory. The volume of work that has been inspired by Martha Fineman’s prolific writing is testament to the theory’s influence. Numerous scholars have employed Fineman’s theory as a critical lens through which to analyse law and policy (e.g. Travis and Garland 2018; Mant and Wallbank 2017; Marvel 2016; Wallbank and Herring 2013). Yet, as I explained in Chapter 1, the vulnerability perspective has also attracted detractors. The theoretical focus on inherent and universal embodiment has been accused of overlooking vulnerabilities that have non-biological causes (Mackenzie et al. 2014) and of rendering vulnerability meaningless through stressing its universality and moving the focus away from identifiable groups (Kohn 2014). Fineman has also been criticised for promoting excessively paternalistic state and legal policies by prioritising security over individual self-determination (see Kohn 2014; Coyle 2013). My aim in constructing my framework of relational vulnerability was to address the critique of the universal model by emphasising the multifarious

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nature of vulnerability and drawing a conceptual distinction between avoidable and unavoidable causes of harm. In addition, through developing the normative dimension of resilience, I was able to incorporate a focus on the individual subject’s own perceptions of her vulnerability. My emphasis on multiple vulnerabilities represents somewhat of a departure from the universal model. After all, Fineman (2008) has warned that it is erroneous to label certain groups as more vulnerable than others, as it overlooks the shared nature of embodied vulnerability and risks pathologising the group in question. Yet, in this book, I was indeed focusing predominantly on a defined group of people—dependency-workers—and I was arguing that they were exposed to certain harms that the rest of the population was not. While there may be potential objections to this approach from proponents of the universal model, I do not believe that my argument is incompatible with Fineman’s. In fact, as I have stressed, universal embodied vulnerability and relational vulnerability are inextricably linked. Relational vulnerability is additional harm (economic, psychological, and spatial) that occurs because the restrained state seeks to conceal the reality of the human condition. If some individuals are to conform to the ideals espoused by the autonomous liberal subject, others need to perform the work necessary to sustain and nurture the population. The private family unit and its prescribed gendered roles allow this to take place, but at considerable cost to the dependencyworker. Thus, the recognition of relational vulnerability as an additional, “pathogenic” (Mackenzie et al. 2014), category of harm, resulting from inequalities perpetuated by the state, directly relies on Fineman’s claim that we are all inherently vulnerable.

Vulnerability’s Temporality Throughout this book, I have developed existing understandings of vulnerability by emphasising its temporal nature, charting the interactions between dependency-work and the stages of the human life course. Universal vulnerability consists of the dual aspects of inevitability and unpredictability. As I argued in Chapter 2, we are vulnerable because we are unable to control time’s passage and the future events that may befall us. By temporalising vulnerability, it becomes possible to expose the autonomous liberal subject as a fiction. Although the liberal subject is not entirely disembodied, it is a body that is very differently constituted to the vulnerable one. Liberal theory imagines the individual to be in control of time, rather than vice versa. The liberal body is untroubled by ageing and is expected to take prudent action in the present day to avoid the risk of future harm. Those who do experience

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bodily harm (thus exposing their vulnerability) are othered, regarded as the authors of their own misfortune. The private family is also temporally constructed and functions to mask the temporality of human embodiment. It is bound together by a variety of gendered norms that dictate the roles that its members are expected to play. Dependency-work is regarded as women’s work—something that has not substantially changed over the past few decades, despite the drive towards equality within the workplace. Parenthood’s temporality is different for men and women. Women are expected to devote time to childcare, being stigmatised if they do not conform to the notion of ideal motherhood (Williams et al. 2013). Men do not face the same burdens and can be considered ‘good fathers’ without a similar temporal commitment (see Elizabeth et al. 2012). Therefore, while liberal theory and neoliberal discourses frame modern women’s dependency-work as a free choice, the fact that its performance is still overwhelmingly gendered casts into doubt how free the choice is. The dependency-worker’s labour in the home allows other members of the family unit, most notably her partner, to emulate the autonomous ideal of personhood. Even in an era where flexibility and work-life balance are buzzwords, the workplace remains configured around a hypothetical ideal worker who is unburdened by domestic obligations that potentially interfere with work (Smith 2014). Through taking on the bulk of socially reproductive work in the home, the dependency-worker is freeing up her partner to meet the requirements of the ideal worker and therefore maximise earning potential across the life course.

Relational Vulnerability: Law and Temporality While there is some recognition of relationship-generated disadvantage in English family law (see Miller v Miller; McFarlane v McFarlane [2006] UKHL 24), this has been understood and discussed predominantly in economic terms to date. Within the case law, it is also presented as a privatised problem, arising from the parties’ individual life choices. In identifying the multiple strands of relational vulnerability, I wanted to prompt a reconceptualisation of the various ways that dependency-workers are harmed by the restrained state. I also wanted to emphasise the inherently embodied and relational nature of the human condition (Fineman 2017), by focusing on the psychological and spatial aspects of relational vulnerability as well as the more familiar economic ones. To survive and thrive, the human body requires rest and relaxation, as well as a space that provides ontological security. The state’s

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systematic concealment and devaluing of dependency-work does not merely have economic impacts—it affects the dependency-worker on a much more profound level. In my analysis, I also sought to emphasise the temporal nature of economic, psychological, and spatial harm. I wanted to stress that relational vulnerability is a potentially lifelong condition for the dependency-worker. While there may be periods in her life where the harms are reduced, they can resurface at a later point in her life. In particular, the dependency-worker is prevented from acquiring sufficient resilience for older age. While the restrained state expects the individual to amass a range of resources during periods of physical strength, the dependency-worker is unable to do so. The absence of pension resources will not be felt during youth and middle-age but will cause considerable hardship in old age when the dependency-worker’s body is experiencing inevitable decline, and she is more likely to be dependent on others. The restrained state, relying on the myth of individual choice, paints the dependency-worker as responsible for her own misfortune, chiding her for failing to make adequate provision for the future. The current legal response to dependency-work serves to exacerbate relational vulnerability and this too has a temporal dimension. Law’s overarching temporality is linear, reflecting “liberal concern for progress in society through developments in technology, industry as a result of accumulation, colonialism and the primordial role of capital as ‘time as money’ and the progenitor of organisation and order within society” (Finchett-Maddock 2018). This linearity is evident in the legal frameworks governing the married and the unmarried family. As I argued in Chapter 4, the discretionary regime under the Matrimonial Causes Act 1973 is increasingly preoccupied with notions of self-righting and attaining economic self-sufficiency as soon after relationship breakdown as possible. Longer-term post-divorce dependency is subject to social stigma, derisorily labelled a ‘meal-ticket for life’ (Thompson 2019). For cohabitants, the court’s inquiry is purely retrospective and no weight is placed on potential future hardship (Miles 2003). Law’s artificial temporality serves to mask the dependency-worker’s relational vulnerability. Law determines the time frame in which financial independence should be achieved. Should the dependency-worker fail to achieve this, it is labelled as a personal failure to maximise earning capacity rather than being an inevitable consequence of her relational role. The increasing emphasis on achieving a clean break means that the dependency-worker cannot seek further assistance should she experience hardship in the future.

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The linear temporality within the legal framework fails to acknowledge relational vulnerability’s fluctuations throughout the dependency-worker’s life course. As such, it represents an inadequate state response.

Resilience A notable gap in the existing vulnerability literature is its tendency to under-theorise resilience. Currently, the universal model conceives resilience as constituting a range of material, environmental, and societal resources on which the individual can draw to mitigate her inherent vulnerability (Fineman 2013). However, there is an absence of discussion of how resilience is perceived by the vulnerable individual herself. This may of course be a deliberate omission. The universal model deliberately eschews the interpersonal in favour of a broader, structural analysis. It does not explicitly aim to analyse individual perceptions of vulnerability or resilience. Nonetheless, as I argued in Chapter 6, this leaves the theory open to potential accusations of paternalism. It also leaves unanswered questions over what principles should guide the responsive state’s process of distributing resources across populations. As I sought to highlight in Chapter 7, there are numerous ways in which resources can be provided, but they are not perceived identically by the individual who receives them. By focusing exclusively on resilience’s external elements, I believe that the universal model overlooks an important internal dimension—the sense of feeling resilient. Resilience is not merely a question of quantification of resources, but how the individual feels that her resources allow her to make choices, give her a sense of control, and allow her to live a fulfilling life. After all, a person may have access to comprehensive health care, a key resilience-enhancing resource that mitigates her embodied vulnerability, but may nonetheless lack resilience if the individuals and institutions that constitute her relational network constrain her from exercising choice over her medical treatment. Equally, resilience is not exclusively tied to the net value of the material resources that one is able to access. It is conceivable that somebody with less material wealth would perceive themselves as more resilient than someone who is objectively more ‘wealthy’. The way that state responses are framed, the language they employ, and the status that they create for the dependency-worker must be analysed in order to ascertain whether they promote resilience. My analysis in Chapter 7 showed that, although all three hypothetical schemes involved allocating resilience-enhancing resources to the dependency-worker, the methods used were very different. When engaging in a vulnerability analysis, it may be tempting to completely dismiss privatised solutions such as redistribution and

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community of property as involving insufficient action on the part of the state. However, as I stressed in Chapter 7, the state takes action even when it claims to be absent. Thus, the state can respond to relational vulnerability through a redistributive scheme, provided that this response endeavours to acknowledge and centre the vulnerable subject. The problem is not necessarily redistribution per se, but that redistribution is currently focused around the autonomous liberal subject as the norm. Additionally, as I have argued, certain aspects of relational vulnerability do require the state to engage in an exercise of correcting imbalances that have occurred during the relationship to prevent the dependency-worker’s partner gaining a lifelong benefit from the former’s work. The greater issue is the temporality of the response. Both redistribution and deferred community of property would only have meaningful effect once the relationship has come to an end. Thus, neither response addresses relational vulnerability that arises during the relationship. They also both represent a middle-class centric response, whereby it is imagined that the family unit possesses sufficient capital assets at the point of relationship breakdown to fully compensate the dependency-worker for her disadvantage. There will be many families where this is not the case but where the dependency-worker has nonetheless suffered disadvantage that the state needs to address. In that sense, state subsidy, including a basic income, offers a greater opportunity to address relational vulnerability’s temporality. However, the inherent limitation of this response is that it risks creating a two-tier system where women are encouraged to become ‘professional’ dependencyworkers, as the experience in the Nordic countries has illustrated (see Haataja and Nyberg 2006). Rather than seeking one comprehensive solution to relational vulnerability, the state response must be holistic. For instance, any reform in the area of family law is likely to be undermined if employment law continues to be constructed around an ideal worker who is unencumbered by domestic obligations. The state must reorganise all its institutions and policies to recognise the reality of inherent vulnerability and dependency.

A Global Crisis and the Need for Urgent Reform I will finish this book with a brief discussion of the urgent nature of the issues that I have discussed. While my focus on the private family and law has been relatively narrow, many of the theoretical discussions have application to other contexts. The fundamental message I wish to convey is that the

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state’s promotion of a temporally artificial, invulnerable view of personhood is not only false and unsustainable, but also actively harmful. Nothing has illustrated the urgent need for a different, vulnerability-focused approach more clearly than the 2020 COVID-19 pandemic, which has placed questions of vulnerability and embodiment under the spotlight in an unprecedented way. The liberal and neoliberal desire to imagine that illness and accident are things that befall those who are less prudent and responsible is no longer possible. The high death toll, especially in the UK and the USA, illustrates the devastating consequences of a restrained state that places capital growth above the safety and well-being of its citizens. The pandemic has also brought into focus our constant reliance on dependency-work for society to function effectively. The forced shift of economic work into the home has caused the mask previously provided by the private family to slip and reveal inequalities. As I argued in Chapter 3, dependency-work is not only gendered but also classed and racialised. White, middle-class women have had the option of delegating their work to more marginalised women, allowing them to progress in the workplace and thereby creating an illusion of equality. However, during the pandemic, this option has been severely reduced, which has brought the gendered inequalities in the household back into focus. The Office for National Statistics (2020) has reported that women have performed the majority of childcare during the pandemic, even where both parents work. This will undoubtedly be felt on a professional level, especially with the looming threat of further lockdown periods and school closures. One newspaper headline warned that women’s lives were in danger of “regressing back to the 1950s” during the pandemic (Summers 2020). Of course, the inequalities in the home were already present, albeit concealed and in many cases reduced through delegation. The pandemic has merely brought them into public view and highlighted the unsustainable nature of the current situation. We are told that “the world will never be the same” (Macintyre 2020) after the pandemic. Even if a vaccine is found for this virus, there are likely to be other pandemics in the future, sharply illustrating the impossibility of human elimination of risk. The pandemic has brought about the biggest challenge yet to the illusory autonomous liberal subject. It is urgent that this opportunity for change is not lost. States must begin a process of reorganising institutions in such a way that explicitly recognises our shared vulnerability and helplessness, and which values the essential dependency-work needed to sustain us all.

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Index

A

Access to justice 101, 169 Ageing 12, 30, 34, 72, 73, 142, 145, 157, 191 Altruism 108, 121, 123 Australia 63, 115, 166 Autonomous liberal subject illusion 51, 100 prominence 67 qualities 94, 99, 147, 165 Autonomy definition 9, 53, 122, 139 in liberal theory 4, 32–35, 38, 84, 97, 153 relational 4, 5, 9, 17, 145, 153–156, 158, 175 Autonomy-turn in family law 94

B

Basic income 17, 171–178, 183, 195

C

Canada 114, 166, 169

Care 4, 14, 27, 28, 36, 40, 59, 72, 111, 126, 130, 145, 147, 150 Cartesian 190 Cash for care 171–173, 177 Childcare 41, 54, 59, 61, 110, 155, 171, 173, 192, 196 Chrononormativity 41 Civil partnership 53, 82, 87, 165 Class inequality 6 Clean break 95–97, 181, 193 Cohabitation 2, 16, 115, 116, 119, 120, 140, 141, 165, 166, 178–180, 184 Common intention 108, 109, 111, 122, 124 Community of property 18, 163, 178–180, 182, 185, 195 Compensation 86, 93, 96, 120, 121, 124, 168, 170, 172 Conjugality 53 Constructive trust 108, 111, 113–115, 122, 127, 131 COVID-19 pandemic 25, 196 Critical legal theory 190

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 E. Gordon-Bouvier, Relational Vulnerability, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-61358-7

199

200

Index

D

Dependency 1, 3, 4, 10, 12–14, 24, 25, 27, 31, 34, 37, 42, 44, 45, 51, 55, 61, 63, 71, 72, 81, 85, 86, 90, 91, 102, 140, 145, 154, 157, 158, 168, 172–175, 182, 184, 195 Dependency-work 3, 7, 8, 11–18, 23–25, 29, 30, 36–45, 51, 52, 54, 55, 57, 59, 63, 64, 67, 69, 70, 72, 81–85, 87, 89–91, 93–95, 103, 107–111, 113, 120, 124, 130–132, 136, 140, 142, 145–152, 154–156, 163, 164, 166, 168, 170–179, 181–186, 189, 191–196 definition 29 female 41–44, 55, 59, 125, 130, 155 gendered 18, 23, 24, 37, 38, 40, 42, 45, 52, 55, 57, 59, 61, 68, 70, 73, 82, 83, 89, 91, 93, 103, 107, 119, 120, 124, 131, 147, 149, 155, 170, 176–178, 191, 196 male 41, 43, 129, 155 Disability 34, 35, 87, 139, 143 Discourse analysis 119 Discrimination 4, 6, 55, 59, 92 Disembodied 3, 4, 12, 16, 32, 35, 191 Divorce 15, 16, 37, 52, 56, 82, 85, 87–91, 93, 95–97, 100, 102, 103, 137, 148, 164, 179, 183 Domestic work 90, 120, 122, 125

E

Earning capacity 60, 69, 70, 87, 95, 103, 140, 170, 177, 183, 193 Economic harm 53, 57, 59, 64, 72 Elder care 30, 57, 63, 72, 130 psychological impact 59

Embodiment 1–3, 33, 35, 40, 45, 190, 192, 196 Environment 33, 65, 70, 122 Equality 16, 33, 39, 42, 54, 61, 62, 91, 92, 99, 142, 143, 148–150, 163, 175, 177, 192 formal 6, 8, 58, 82, 90, 91, 93, 114, 143, 150, 157, 175 substantive 17, 93, 94, 143, 145, 149, 152, 158, 168 Equal sharing 92 Estoppel 108, 111, 120–122, 126, 127

F

Fairness 83, 88, 93, 115, 164 Family married 2, 12, 14–16, 44, 53, 67, 82, 83, 85, 86, 103, 107, 125, 131, 156, 164–167, 189, 193 social construct 42, 81 unmarried 2, 14, 16, 44, 103, 107, 112, 131, 151, 156, 165, 166, 180, 193 Feminism 2, 4, 9, 25, 35, 38, 68, 86, 152, 172, 186 Fineman, Martha 1–10, 13–15, 17, 18, 23, 24, 27–29, 32, 34, 38, 42, 44, 53, 54, 62, 81, 86, 97, 102, 135, 136, 141–143, 145–147, 152, 153, 158, 166, 172, 174, 185, 190–192 Finland 17, 171 Future 12, 23, 28, 30, 31, 34, 44, 45, 56, 63, 64, 71, 72, 95, 97, 99, 100, 111, 112, 118, 125, 156, 157, 181, 186, 193 uncertainty 100. See also Temporality

G

Gender norms 25, 45, 192

Index

ideologies 39, 58, 166

201

K

Kant, I. 4, 9, 33, 152 H

Heteronormativity 85, 91, 93, 147 Heterosexuality 10, 13, 14, 37, 41, 53, 58, 60, 61, 67, 85, 121, 129, 130, 155 Hidden poverty 56, 173 Home as asset 68 family 3, 15, 18, 29, 38, 56, 60, 66, 68, 71, 87, 91, 108, 114, 121, 149, 179, 180 loss of 15, 65, 71, 178 Homelessness 62, 65, 66 Housing tenure 69 Human body 24–26, 33, 36, 59, 66, 157, 192 Human condition 1, 2, 5–7, 10, 14, 23–26, 29, 31, 41, 43, 45, 52, 63, 85, 136, 142, 145, 146, 191, 192

L

Labour, household division of 151 Legal Aid 101, 102, 169 Legal power 38 Legal storytelling 116 Liberal theory 4, 32–36, 38, 83, 84, 93, 97, 143, 153, 191, 192 Life course 1, 3, 11–13, 18, 23, 26–30, 36, 41–43, 45, 51, 52, 68, 100, 137, 138, 142, 145, 147, 157, 190–192, 194 Locke’s labour-mixing theory 122 M

Marriage 2, 12, 15, 16, 37, 41, 53, 61, 82, 84–88, 90, 91, 93–95, 97–99, 101, 103, 116, 140, 149, 164–166, 178, 179, 184 Mortgage 71, 113 Motherhood penalty 54

I

Ideal worker 54, 93, 192, 195 Ideology 14, 42, 65, 67, 68, 116, 122, 123, 138, 149 Inequality 5, 8, 18, 40, 62, 63, 85, 87, 93, 150, 175, 177, 184 Inevitability 2, 11, 23, 24, 26, 29, 30, 51, 63, 94, 102, 145, 191 Intra-familial inequalities 52, 55, 99 Invulnerability 4, 24, 26, 36, 37, 51, 135, 143, 158

N

Neoliberalism 68, 139, 190 Non-interventionism 55, 85, 86, 101, 103, 152, 170 Norway 171 O

Ontological security 18, 65, 72, 178, 180–182, 185, 192

J

P

Judicial discretion 92, 114, 179, 180, 182, 183 Judicial redistribution 113, 163, 167

Paternalism 17, 92, 116, 144, 194 Pensions 30, 56, 64, 173, 177, 193 pension inequality 57 Personhood 1–4, 6, 14, 23, 24, 29, 32–38, 40, 43, 45, 56, 81, 83,

202

Index

88, 97, 99, 122, 136, 138, 143, 150–152, 165, 181, 185, 189, 192, 196 Post-divorce dependency 94, 96, 97, 193 Prenuptial agreements 95, 97–100, 112, 179 Private family 2, 3, 7, 10–15, 23–25, 29, 31, 36–39, 41, 43–45, 51, 53–55, 60, 68, 70, 81, 89, 94, 101, 120, 121, 131, 136, 146, 148, 157, 158, 172, 174, 189, 191, 192, 195, 196 Privatisation 44, 55, 85, 95, 155 Property as a social construct 25 inviolability 114 retrospective 157 Psychological harm 15, 57, 59, 63, 174 Public sphere 13, 37, 39, 40, 58, 70, 120, 126

R

Rationality 4, 35, 45, 92, 99, 101, 114, 118, 141, 168, 184 Relational autonomy 9, 17, 145, 153–156, 158, 175 Relationality 2–4, 14, 29, 30, 119, 126, 127, 131, 138, 147, 158 Relationship generated disadvantage 13, 53, 72, 96, 102, 110, 164, 184, 189, 192 Resilience aims of 135 equality 17, 142, 148, 163 external component 136 internal component 148 neoliberal model 136 normative commitments 148, 154, 158, 176 psychological model 138, 144

relational autonomy 9, 145, 153, 154, 156 vulnerability model 144, 194 Responsive state 4, 5, 9, 18, 140, 142, 147, 151, 152, 168, 174, 194 Restrained state 12, 13, 15, 18, 23, 31, 32, 37, 42, 45, 53, 66, 72, 82, 85, 97, 99, 136, 139, 142, 150, 154, 156, 174, 175, 191–193, 196

S

Same-sex couples 53, 58, 126, 128, 129 Scandinavia 17 Second shift phenomenon 58, 63, 171 Self-righting 15, 16, 96, 139, 140, 193 Sentimentality 130 Separate spheres 89, 155 Social reproduction 29, 54, 91, 172, 175 Spatial harm 15–18, 57, 64, 69, 70, 107, 112, 131, 146, 163, 164, 170, 180, 185, 193 State institutions 13, 14, 30, 38, 52, 81, 83, 146, 184 State subsidy 17, 18, 171, 173–176, 178, 184, 185, 195 Sweden 171, 179

T

Temporality 11, 12, 14, 15, 25, 34, 36, 41, 43, 45, 72, 86, 91, 99, 103, 111, 156, 158, 169, 192–195 inevitability 2, 23, 24, 26, 30, 51, 63, 102, 191 unpredictability 23, 26, 28, 63, 100, 191

Index

203

148, 151, 152, 156, 158, 163, 168–170, 173–176, 178, 179, 183, 184, 190–195 universal model of 2, 5 vulnerable groups 4, 8

U

Unpaid work 2, 41, 58, 108, 121, 122, 124, 126, 127, 172, 175 Unpredictability 2, 11, 23, 24, 26, 28, 29, 63, 100, 145, 191 V

Vulnerability more-than-ordinary 8, 10, 31, 43, 51, 146 relational 2, 3, 7, 8, 10–17, 23, 30, 32, 38, 42, 43, 45, 51–53, 60, 63, 64, 72, 73, 81, 86, 87, 103, 131, 135, 136, 144, 146,

W

Wages for Housework movement 172 Welfare benefits 56, 71, 154, 171, 174 Women’s work 91, 124, 129, 131, 147, 172, 192