Abstract
In this article, I examine the legal position of those who perform caregiving work within the context of a cohabiting relationship through a novel relational vulnerability lens. I argue that the state, through privatising and devaluing caregiving labour, situates carers within an unequal and imbalanced relational framework, exposing them economic, emotional, and spatial harms. Unlike universal vulnerability, which is inherent and unavoidable, relational vulnerability can be avoided and reduced if the state were to acknowledge that humans are embodied and relational rather than self-sufficient and rational. Law’s treatment of cohabiting carers reflects the state’s broader tendency to value economic self-sufficiency, while confining caregiving to the private family. I argue that the state has a duty to respond directly to relational vulnerability and should aim to make cohabiting carers resilient. Resilience must involve the provision of material resources but should also have a normative commitment to achieving autonomy and equality for those marginalised by law and state policies.
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Notes
The term ‘social reproduction’ is defined as “biological reproduction; unpaid production in the home (both goods and services); social provisioning … the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships)” (Hoskyns and Rai 2007, p. 300). Although the article predominantly focuses on caregiving, many of the cases also involve other unpaid work, such as looking after the home or working unpaid in the family business.
Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.
SRJ v DWJ [1999] 3 FCR 153, 160 (Hale J, as she then was).
The feminine pronoun is used throughout to refer to either male or female persons.
See Grant v Edwards [1986] Ch 638.
Lloyds Bank v Rosset [1991] 1 AC 107.
Thomson v Humphrey, [2009] EWHC (Ch) 3576, [44] (Warren J).
See James v Thomas [2007] EWCA Civ 1212.
Lloyds Bank v Rosset, n 6, p 133 (Lord Bridge).
Stack v Dowden [2007] UKHL 17, [60] (Baroness Hale, as she then was).
Ibid.
Jones v Kernott [2011] UKSC 53.
Miller v Miller; McFarlane v McFarlane, n 2, [136] (Baroness Hale).
See Thorner v Major [2009] UKHL 18.
E.g. Jennings v Rice [2002] EWCA Civ 159; Re Basham [1986] 1 WLR 1498; Wayling v Jones [1995] 69 P&CR 170.
Burns v Burns [1984] Ch 317.
See e.g. Curran v Collins [2013] EWCA Civ 382, [13], (Toulson LJ).
Wayling v Jones, n 15.
Culliford v Thorpe [2018] EWHC (Ch) 426.
Ibid, [78] (HHJ Paul Matthews).
Thorner v Major, n 14.
Ibid, [19] (Lord Scott).
Ibid, [70] (Lord Neuberger).
Ibid, [80] (Lord Neuberger).
Lloyds Bank v Rosset, n 6, p. 131 (Lord Bridge).
James v Thomas, n 8, [36] (Sir John Chadwick).
Thomson v Humphrey, n 7, [43] (Warren J).
Dobson v Griffey [2018] EWHC (Ch) 1117.
Ibid, [84] (HHJ Paul Matthews).
Jones v Kernott, n 12, [19] (Lord Walker and Lady Hale).
Stack v Dowden, n 10, [92] (Baroness Hale).
Geary v Rankine [2012] EWCA Civ 555.
Ibid, [7].
Ibid, [13] (Lewison LJ).
The capital limit for means-tested benefits is £16,000.
See White v White [2001] 1 AC 596.
Family Law (Scotland) Act 2006, s 28 (3).
The most dramatic cuts took place under the Legal Aid Sentencing and Punishment of Offenders Act 2012, which removed from scope the majority of private family law matters (including actions for a constructive trust or proprietary estoppel), unless an applicant can show evidence of domestic abuse.
The Finnish scheme, Kotohoidontuki, was introduced in 1985 and is available in respect of children aged 1–3 [www.kela.fi (accessed 23 August 2018)]. The Norwegian scheme, Kontantstøtte, was introduced in 1998 and is available for children aged 1–2 [www.nav.no (accessed 23 August 2018)]. The Swedish scheme, Vårdnadsbidrag was introduced in 2008 and is available for children aged 1–2 [www.forsakringskassan.se (accessed 23 August 2018)].
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Acknowledgements
I would like to thank Rosie Harding, Tatiana Cutts, Régine Tremblay, and Alan Brown for their comments on previous drafts of this article. I would also like to thank the anonymous reviewers and the Feminist Legal Studies editorial board for their detailed and constructive feedback, which has vastly improved the article.
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Gordon-Bouvier, E. Relational Vulnerability: The Legal Status of Cohabiting Carers. Fem Leg Stud 27, 163–187 (2019). https://doi.org/10.1007/s10691-019-09404-3
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DOI: https://doi.org/10.1007/s10691-019-09404-3