英文同居契约和人际关系民主化

ELIZABETH KINGDOM? COHABITATION CONTRACTS AND THE DEMOCRATIZATION OF PERSONAL RELATIONS ABSTRACT. Feminist opposition to the use of cohabitation contracts for the private regulation of personal relations has been predicated on the classical reading of contract as commerce. On this reading, cohabitation contracts construct cohabitants’ obligations as commercial and typically detrimental to women because of their weaker bargaining power. But the premisses of classical contract theory are being undermined by radical critiques which emphasize the importance of relationality in the reading of contract. On such critiques, the obligations constructed by cohabitation contracts need no longer exclude considerations of the parties’ different financial status and social circumstances. The con- struction of cohabitants’ obligations can accordingly foreground fairness and equality, both in drafting and in enforcing cohabitation contracts. In this way, the conceptualization of contract as relationality encourages the use of cohabitation contracts as progressive mechanisms for the democratization of personal relations. KEY WORDS: cohabitation contracts, commerce, democracy, relationality Classical contract law constructs the obligations holding between the contracting parties as commercial. If this doctrine is extended to cohabi- tation contracts, the obligations which law constructs between the cohabit- ants are similarly commercial. But because the law presumes that unmarried cohabitants are in a sexual relationship, legal doctrine permits the striking down of cohabitation contracts on the grounds that they are immoral, and illegal, in the sense that they promote illicit sexual relationships. If the premisses of classical contract law are challenged, however, the conclusion that cohabitation contracts must be unlawful no longer follows with such certainty. Radical critiques of contract law are gaining ground in academic analyses of contract law, and they typically point to the way in which law itself is attending to questions of fairness and reason- ableness in the reading of specific contracts. The effect is that contracts need no longer be read as creating exclusively commercial obligations, nor predominantly in terms of the intention and consent of the parties and the validity of the clauses. More positively, these radical critiques ? Senior Lecturer, Department of Sociology, Social Policy and Social Work Studies, University of Liverpool (E-mail: kingdom@liverpool.ac.uk). Feminist Legal Studies 8: 5–27, 2000. © 2000 Kluwer Academic Publishers. Printed in the Netherlands. 6 ELIZABETH KINGDOM emphasize the importance of relationality in the analysis of contract and make it possible to see how contracts can construct obligations informed by norms of a more progressive nature than those typically associated with the model of contract as commerce. For example, the shift from contract as commerce to contract as relationality facilitates a shift away from the norms of self-interest and competitiveness and toward the norms of altruism and co-operation. The shift from contract as commerce to contract as relationality, partic- ularly as it impacts on the issue of cohabitation contracts, is of considerable interest to feminists. Regardless of whether their interests lie in the specific field of law, feminists have tended to be politically hostile to contract as an ideology for reading social relations. They have argued that contract, with its reliance on the ideology of the formal equality and free will of the contracting parties and on the ideology of their abstract nature, detached from real social circumstances, conceals the unequal bargaining power typical of women and men. Cohabitation contracts between women and men would accordingly be a prime example of the concealment of this inequality, with the effect that the institution of contract between cohab- itants would reproduce the unequal social relations typical of women and men. The strength of this feminist critique is not in doubt. But it is predicated on the classical reading of contract as commerce. Once the premisses of classical contract law are loosened, however, this feminist critique of cohabitation contracts is similarly challenged. In this article, I argue that the shift from the model of contract as commerce to the model of contract as relationality has the effect that the obligations constructed by a cohabitation contract need no longer be seen as necessarily detrimental to women.1 The article divides into four main sections. The first section, English Law’s Resistance to the Use of Cohabitation Contracts, comprizes some 1 An important corollary of this critique is that the obligations constructed by a cohabitation contract between same-sex partners need no longer be seen as necessarily detrimental to a financially weaker party. For feminism no longer gives automatic priority to the political interests of women as a single and homogeneous population. See Kingdom (1999, pp. 158–160). Accordingly, a feminist critique of cohabitation contracts is not confined to protecting the interests of women. It extends to a concern for the interests of all persons who have not been adequately protected by law and for the situation of everybody who sees the use of cohabitation contracts as a useful alternative both to marriage and to the lottery of equity for the regulation of their personal relations. See also Mee (1999, passim); Kingdom (1991, pp. 93–100); Kingdom (1996, pp. 47–58). So, whilst the primary focus of this article is the reading of cohabitation contracts as they affect women, it periodically foregrounds the implications of that reading for same-sex partners. COHABITATION CONTRACTS 7 “state-of-the-nation” remarks about English law’s current resistance to the use of cohabitation contracts. The second section, Feminist Opposition to Cohabitation Contracts, is an overview of feminist opposition to such contracts, opposition predicated on the commerce model of contract. The third section, Feminist Ambivalence over Cohabitation Contracts, shows how, even in those feminist legal writings which favour the use of cohabita- tion contracts, there is an indication of why feminists might keep the jury out on the matter of their legal recognition. Briefly, this ambivalence is predicated on feminists’ readings of contract as undergoing shifts from contract as commerce to a model of contract as power and protection. These new readings can be strengthened by the support of radical critiques of contract, and the fourth and final section, Contract as Relationality, exhibits three such critiques and points to their potential for the analysis of cohabitation contracts as progressive mechanisms for the democratization of personal relations. ENGLISH LAW’S RESISTANCE TO THE USE OF COHABITATION CONTRACTS Standard texts on contract law routinely refer to the unlawful nature of cohabitation contracts.2 Similar warnings appear in standard texts on family law.3 They also appear in the standard texts dealing specifically with cohabitation contracts.4 The legal doctrine behind this reading is complex. For convenience, I term it “the immorality doctrine” and for ease of exposition I extract eight components from Gloag’s observation that A contract having as its object the furtherance of illicit sexual intercourse is illegal.5 The eight components are � the presumption that contracting cohabitants are sexually involved � the presumption that this sexual involvement is the object the consid- eration for which is the basis of all the other clauses in the contract 2 See for example Winfield (1950, pp. 284–286); Cooke and Oughton (1989, p. 153); Elliott and Quinn (1999, p. 154). 3 See for example Hoggett and Pearl (1991, p. 346), and for background reading on aspects of family law relating to cohabitation, see Chapter 8 passim; see also Bromley and Lowe (1992, pp. 10–11); see further Dewar (1992, p. 69), and the useful Chapter 2 on Marriage and Cohabitation. 4 The definitive text remains Barton (1985); for specific reference to the immorality doctrine, see Chapter 3. See also Lush (1993, p. 145, n. 1; Oliver (1987, Paragraph 209); Parker (1987, pp. 144–147); Priest (1993, p. 84); Samuelson (1992, p. 24). 5 Gloag (1929, p. 562). 8 ELIZABETH KINGDOM � the presumption that the said sexual involvement takes the form of heterosexual intercourse � the presumption that this heterosexual intercourse takes place between men and women who are not married to each other � the definition of this heterosexual intercourse as an act of prostitution � the designation of prostitution as illicit sexual intercourse, where “illicit” typically means “not authorised by law or custom” � the inclusion of illicit sexual intercourse in the category of immoral actions � the inclusion of immoral actions in the category of illegal actions. Not one of these eight components, taken individually, could survive a nanosecond’s critical analysis, so the tenacity of the immorality doctrine is remarkable. So, too, is the tenacity of the parallel doctrine that the legal recognition of cohabitation contracts would undermine the institution of marriage and for that reason be contrary to public policy. But the signs are that the days of these doctrines’ ability to hold back the legal recognition of cohabitation contracts in the UK are numbered.6 It is politically opportune, 6 The present administration’s Ministerial Group on the Family advocates the legal enforceability of pre-nuptial contracts (Supporting the Family, 1999, Section 4.12). The document makes no explicit comparable proposal regarding people who cohabit. Indeed, the document is so evasive concerning such people (see 4.15) that its title should really be Supporting Marriage. See also The Law Society (1991, Paragraphs 3.23–3.40). The Law Society included under the heading “marriage contracts” contracts between people before or during marriage; it did not consider contracts drawn up between cohabitees, though it noted the similarity of their likely terms and reasons for use. More recently, however, the Law Society has extended its advocacy of the legal enforceability of contracts to those between cohabiting couples (1999). See also Scottish Law Commission (1992). The Scottish Law Commission’s Discussion Paper No. 86 (May 1990) had provisionally recommended that contracts between married persons be accorded legal recognition (see 9.1). But in my consultative document submission (copy with author), I criticised the use of the technique of using spouses as the criterion for cohabitants and I recommended that the wording of The Committee of Ministers of the Council of Europe recommendation of 7 March 1988 be followed. The Scottish Law Commission ackowledged this point and the eventual wording of the recommendation is “87. A Contract between cohabitants or prospective cohabitants relating to property or financial matters should not be void or unenforceable solely because it was concluded between parties in, or about to enter, this type of relationship” (1992, p. 127). In the Scottish context, a small study of Edinburgh lawyers revealed a willingness, qualified by various degrees of enthusiasm, to add cohabita- tion contracts to their style files. See Kingdom (1994, pp. 8–9). The radical solution to the grey area between pre-nuptial, marital and cohabitation contracts is to propose the legal recognition of contracts between cohabitants regardless of marital or sexual status. This is precisely what Teresa Gorman proposed when speaking to the Cohabitation (Contract Enforcement) Bill (11 June 1991) Bill 175, HMSO. The bill did not succeed, of course, and, as noted above, it is much more likely that legal recognition of cohabitation contracts will, at least in the first instance, be the legal recognition of pre-nuptial contracts. COHABITATION CONTRACTS 9 then, to examine the grounds of feminist hostility to the use of cohabitation contracts. FEMINIST OPPOSITION TO COHABITATION CONTRACTS It is clear that the immorality doctrine is predicated on the model of contract as commerce. Prominent feminists have shared this reading of contract, with the result that they have been hostile to contract both as a means of reading social relations and as a mechanism for the private regulation of personal relations.7 Their opposition is similarly grounded in a reading of contract as commerce. Despite their distinctive positions, they all predicate their opposition to contract on their critique of contem- porary social relations as characterised by economic inequality between women and men, on the function of contract ideology to obscure the gendered nature of bargaining power, and on law’s reproduction both of that economic inequality and of women’s inferior status as parties to contract. In this section, I distinguish five versions of this critique: contract as male right over women; contract as Gesellschaft; contract as reproduction of market inequalities; contract as gendered distribution of wealth; and contract as patriarchal colonization of lesbian aspirations. These five versions are exemplified by the work of Carole Pateman, Ngaire Naffine, Frances Olsen, Gail Brod, and Ruthann Robson and S.E. Valentine respectively. 7 An early, and laudable, exception is A. Bottomley et al. (1981). In the Kent seminar discussion, Anne Bottomley advocated caution over how UK feminists should receive the American feminists’ hostility to contract as a mechanism for the regulation of personal relations where their arguments are directed against pre-nuptial contracts. Her point is that a distinction must be drawn between these contracts and contracts between people who are not married and who intend to remain so. This is a strong argument, because pre- nuptial contracts, by definition, reflect legislation governing the disposal of assets and other arrangements on divorce. On the other hand, the chief argument used by American and other feminists against pre-nuptial contracts has the same form as the argument directed against cohabitation contracts, namely that women’s economic disadvantage in social life will be reproduced in the terms of any contract which they sign with a male partner. In this chapter, then, whilst mindful of Bottomley’s warning, I consider arguments for and against cohabitation contracts irrespective of whether they are between married persons or non-married persons. At the same time, I would justify concentrating on the American literature on the grounds that in the UK the legal recognition of contract for the regulation of personal relations is more likely to follow the American example (see supra n. 5) than to introduce legislation governing a broader range of issues concerning de facto relationships of the kind enacted in, for example, Sweden. For a useful introduction to that legislation, see Bradley (1989). 10 ELIZABETH KINGDOM Contract as male right over women Pateman’s book8 has probably been the most influential feminist text shaping contemporary feminist hostility to contract. She takes issue with the political fiction of the social contract, on the grounds that it presupposes the sexual contract. The sexual contract establishes both men’s polit- ical rights over women and their orderly access to women’s bodies. The fiction of the marriage contract is problematic for Pateman, both because it is unwritten and because its official ideology, that of the irrelevance of gender to contract, conceals the inequalities of status between women and men.9 Pateman argues powerfully that under the institution of the marriage contract women are exchanged, just as if they were property.10 Pateman’s reading of the marriage contract conceptualizes contract on the model of commerce, a contract for access to sexual property. She impli- citly supports feminist critiques of the marriage contract which point to the way in which the economic inequality of women other than middle class women and professional women is an obstacle to their negotiating a cohabitation contract.11 Contract as Gesellschaft Naffine follows Pateman’s hostility to the contractual view of social life.12 She maps her critique of the classic model of contract on to the distinction between the principles of Gesellschaft and Gemeinschaft, the principles of individualism and collectivism respectively. Her argument is that both classic and modern contract law conceptualize legal persons as “free and equal owners of commodities . . . all similarly equipped to engage in trans- actions which will redound to our personal advantage.” Naffine notes, further, that it is the function of law to secure the rights of persons to form contracts the terms of which they choose and from which they stand to benefit.13 At the same time, Naffine observes, the law does not allow 8 Pateman (1988). 9 See also Hoff (1991). Hoff argues that the shortcomings of the unwritten marriage contract are not remedied by introducing new forms of contract for the regulation of personal relationships. Her reasons are that the expectation that parties to any such contract are equal is undermined by the institutionalization of female inequality and that there is a strong likelihood of any such contract being unfair so long as young women (and women with no money for legal advice) are encouraged to marry for love rather than for economic considerations. 10 Pateman (1989, pp. 59–60). 11 Pateman (1989, p. 155). 12 Naffine (1990, p. 71). 13 Naffine (1990, p. 73). For a sociolegal account of the alleged shift in Western law from the Gemeinschaft ideology of the fraternal bonds of comradeship or kinship to the COHABITATION CONTRACTS 11 husband and wife to draw up contracts in this way, but interprets the marriage contract in terms of the husband’s entitlement to the wife’s unpaid domestic services.14 Both in her own critique of law and in drawing atten- tion to the immorality doctrine, Naffine operates with a reading of contract as commerce. Contract as reproduction of market inequalities Olsen’s position is that reform strategies to improve the lives of American women have occurred within an ideological world view which perceives social life to be divided between the separate but interdependent spheres of the family and the market.15 The article includes a powerfully argued objection, in principle, to the importation of a market mechanism – the contract – into the private sphere of the family. In particular, she is sceptical of the concomitant importation into the family of the market ideology of equality, with the effect of legitimating forms of inequality and domination, such as unequal earning capacity and emotional inequality. Regardless of the marital status of women entering into such contracts, Olsen proposes that “[I]n the same way that contracts in the marketplace may formalize domination as much as they express the will of the parties, contracts among lovers and friends may reflect and perpetuate the inequal- ities in their relationships.”16 Olsen’s argument is predicated on a reading of contract as commerce, such that the use of cohabitation contracts for the private regulation of personal and domestic relations becomes the vehicle, as it were, for the reproduction of women’s market inequality. Contract as gendered distribution of wealth In a closely argued article, Brod draws on social science research to show that premarital contracts disproportionately harm women as a socio- economic class and skew the unequal division of wealth along gender Gesellschaft ideology of the Weberian “community of strangers” characterized by specific and limited contract, see Cotterrell (1984, pp. 125–130). For a critique of the alleged incompatibility of community and contract, see Unger (1986, pp. 63–66 and 86–87). 14 Naffine (1990, p. 70). 15 Olsen (1983). Olsen’s argument is in direct contrast to the pioneering work of Lenore Wei