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Gender

Although property law is all but gender-neutral in its substantive rules today, gender remains an important and pervasive consideration in both the development of its principles and their application. Women as a group are absent from large swathes of the syllabus but, when they do appear, it is always as the 'other', and usually as the victim. What we rarely get is a sense of a gender dynamic, the relationship between men and women - a relationship so frequently of frank exploitation that one suspects that, since it reflects so badly on men, this might even be a deliberate omission. Reading cases on undue influence or family home disputes, students will readily identify that the law has a problem with women who allow themselves to be pressured or drift into unwise situations. By focusing on gender as a theme, however, rather than women, they will see that the problem is not the women per se but their assumed and actual gender roles and the contrasting material situations of men and women. That these ideas, behaviours and material situations are in process of change even as we speak is, of course, one of the fascinating aspects of this topic, but it does prompt recognition that today's students may not fully understand the gender dynamics of previous generations - a topic rarely explored in our textbooks, which tend to skate over contemporary history and assume that the identification of men with paid work and women with housework and childcare is universal rather than a blip in our particular history.

Discussions of gender often arouse hostility among students. There are always those for whom a reference to women in two successive lectures offers evidence of the lecturer's bias against men. But I have found that if you make gender just one of several pervasive themes in the course, there will be less resistance, partly because the recurrence gives it greater credibility (not helped, however, by its absence from the textbooks), but partly, too, because engagement with the themes is a learning outcome of the course and will be assessed. And of course the theme will be picked up with enthusiasm by other students, to whom the idea of looking into the sexes' different experiences of property law holds much appeal. A useful teaching device is to ask students to focus not on the unfortunate women in these cases but on the men. This helps to deflect any criticism that you give too much attention to women in law. If you ask questions such as Why has the man in this case behaved in this way? What is the law's response to his actions? Even Do you think it is appropriate? What do you think the law's response should be?, you change the focus from protecting the 'victim' to naming the cause of her problems and revealing how power relations become embedded and perpetuated in society.

The abolition of the presumption of advancement in s. 199 of the Equality Act 2010 (not yet in force at the time of writing) offers a topical opportunity for socio-legal investigation, if only to force students to look beyond the obvious rightness of formal equality to the reason for the presumption's existence and the purpose it originally served (Auchmuty, 2007). A course- work title we set on this topic this year elicited unevidenced (and sometimes incorrect) generalizations about women's economic position in both the 'ancient' (sic) past and the present, combined with ignorance of the social changes that led to the weakening and eventual abolition of the presumption, and even a complete misunderstanding of Tinsley v Milligan [1993], where one student advocated the extension of the presumption of advancement to same-sex couples on equality grounds. This kind of kneejerk reaction to the availability of rights as an automatic remedy is a consequence of the rise of the rights culture following the coming into force of the Human Rights Act 1998, discussed below.

Where the theme of gender has most obvious application is in the topic of trusts of the family home. Here we quickly realize the difficulties caused by the textbook silence on recent history (that is, the history of the past 50 years or so), alluded to earlier in this chapter. The classic cases of Gissing v Gissing [1971], Pettitt v Pettitt [1970] and Burns v Burns [1984] may as well have taken place in the Victorian era as far as most of our students are concerned; they all happened in the past, and either things are different now (the old tale of progress) or nothing has changed, an impression reinforced by the frequent references to these decisions as authorities for later case law. On the one hand, it is undoubtedly true that our understandings of home ownership and of men's and women's relationship to the home, the workplace and each other have been transformed in the last half-century, yet, as Baroness Hale's judgment in Stack v Dowden and subsequent litigation would seem to suggest, it would be wrong to see women's difficulties as quite resolved. We have moved on, but we are not there yet; things are different, but somehow the problem remains. I have noticed that some textbook writers have given up mentioning cases from the 1970s and 1980s in the realization, perhaps, that their facts are no longer relevant to today's conditions and may be misinterpreted by students who lack a grasp of gender relations and housing policy in the relevant period.

I would take the opposite approach: I think these cases are worth discussing as part of the hidden heritage of gender expectations underpinning the law in this area. Such an exercise will immediately expose the importance of context in legal decision-making. Specifically, it will raise the issue of agency in any given place and time, encouraging students to consider whether the women in those cases 'chose' to contribute less in purely financial terms to the home, whether they 'chose' to stay home and look after the children, or whether they did these things because of a lack of affordable childcare, unequal pay or bars in employment or, above all, social expectations. Moreover, in 'choosing' the homemaker role, did they anticipate forgoing an interest in the family home? Can we blame them for getting this wrong? Are we wrong to trust those we love? Understanding the past will enable students to consider how far things have changed. Here they can draw on their own experience alongside the facts of contemporary case law and other sources, and perhaps even undertake some empirical research. As I have said before, if we want them to engage with potential reform in this area, we want them to produce assessments based on considered evidence, not impressionistic opinions.

Research into the social context of Gissing and Burns will make clear to students that the twentieth-century equitable rules confining shares in the family home to those who made financial contributions to the property were potentially unfair to women who, because of the social factors mentioned above, were less able to make such contributions. This will in turn reveal how such rules have tended to perpetuate existing structures and keep property in the hands of men. Students will see how each judicial attempt to make the law 'fairer' to women provoked hostile reactions from those who contended that equity was being employed in too free or unprincipled a manner, leading to a narrowing or even blocking of the reform. In light of this knowledge, students might be cynical about Lord Neuberger's preference in Stack v Dowden for those clear and predictable resulting trust rules that just happen to have worked so well for men in the past. Yet it might also lead them to side with him; with women's changing economic position today, maybe the certainty of strict rules equally applied is just what is needed.

It follows that it is only with this background knowledge that we can make proper sense of a case like Stack v Dowden, a judgment that has divided critics in much the same way as those earlier cases. Students, like judges, seem to find Stack v Dowden a difficult case to apply. They often revert to common- sense ideas about deservingness and financial contributions, bypassing all the social factors that Baroness Hale endeavoured to bring into the equation. But those social factors are the key to her very different approach; Hale wanted the court to confront the reality of people's lives and the way they arrange their affairs within a committed relationship. Only by asking these questions can they (and our students) get to the heart of the parties' intentions.

What makes the case so interesting as a paradigm is that, both in its facts and in its law, Stack v Dowden is the product of 40 years of social change, much of it (let us not forget) fuelled by feminism. Prior to the 1970s, Ms Dowden simply could not have been in the position she was; a woman like her could not have existed as litigant. She could hardly have been an electrical engineer (that was a man's profession), and she could hardly have earned more than her partner: women did not have equal pay and were informally barred from senior positions, especially those which involved overseeing men. Once the children came along, she would have married their father, or at least pretended (as Mrs Burns did) that she was married to him; her home would not have been in joint names, but solely in his; and she would have been coming to court just to get a share, not a larger one. Students need to know this, for most of them will have grown up in an era of formal gender equality and have not yet, perhaps, come up against the informal barriers that still remain in many areas of life.

One way to help them to understand this is to ask them to research and compare the social setting of Burns and Stack v Dowden. To do this, they must be made as aware as Baroness Hale is (since she has lived through the period in question) of the long history of privileging of men in property claims, the profound social and economic changes in women's position over the period from Gissing and Burns to the present, the parallel changes in patterns of property ownership and mortgage practice - homes acquired since Boland have tended to be in joint names - and the steep decline in marriage and rise in cohabitation, themselves a consequence of divorce reform and women's increased access to paid employment as an alternative form of support - all of which Ms Dowden's case exemplifies. Such an investigation lends itself to a group exercise, ultimately leading to a presentation, perhaps with each member of the group taking a different topic to research and present. Students could also consider the significance of the background and personality of Baroness Hale herself, and her position as the only woman ever to sit in our highest court. Apart from the standard biographical references, you could refer your class to her pioneering co-authored study Women and the Law (Hoggett and Atkins, 1984) and note her contribution to the Feminist Judgments book (Hunter et al., 2010); what does this say about her? An interesting exercise would be to compare and contrast Hale's approach to women's property claims with that of another very different champion of their rights, Lord Denning.

Ms Dowden's situation looks in so many respects like that of Mrs Burns: long-term cohabitation, several children, relationship breaks up and she wants her share. But how different the gender dynamics are - and thus the outcome. Notwithstanding Baroness Hale's attempts to make the law fairer for women, Ms Dowden won for precisely the same reasons that Mr Burns did - because she held the financial power in the relationship. So what is the way forward for women? And where does this leave men? These are the final questions for students to consider, questions that have more than academic interest for them because they concern their own futures, as well as the future of the law. After such a study, no student should be able to complain that property law is dull and irrelevant.

 
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