Contract Law from a Legal Feminist Perspective - Essay Example

?Question: How areas of contract law, specifically pre-marital agreements, are affected from a feminist perspective? Discuss in light of Radmacher v Grantino and other case law. Introduction Historically, women had always been the legally disadvantaged gender. Prohibited to own properties, vote in elections and generally subjugated to the superior rights of men in the family household, women have come a long way today spurred by the fervour of the various feminist movements. Legal feminist movements, however, are internally torn by conflicting perspectives and causes. Some legal feminists push for the equal application of laws to both men and women. Others believe that the law and the courts must take extra steps to favour women over men considering that women are, by definition and in reality, placed at a lower stratum than men in society. This clash of perspectives may even be more pronounced in the days to come with the recent Supreme Court decision in Radmacher v Granatino,1 an English premarital agreement case. This case does not only reverse previous decisions of courts in prenuptial agreements by conferring a rebuttable presumption on such agreements but it breaks the stereotypical image of wealthy men enforcing premarital agreements against economically vulnerable women spouses. The implication of the sweeping application of the legal dictum of Radmacher in future cases is to deprive women spouses, generally perceived to be the less economically viable partner, of court intervention and assistance in prenuptial agreements where such agreements contain provisions disadvantageous to women. The Feminist Legal Theory The feminist legal theory emerged in the 1970s and, as with any other feminist movement, was driven by the perception that men dominate and shape society, which itself subordinates women to men. Feminists bewailed that legal systems render decisions with underlying assumptions about gender, therefore, justifying and further institutionalising gender inequality. Such gender assumptions, according to them, can be gleaned in decisions that take into account and were influenced by essentially gender-related factors. It had been argued by some feminist movements that it was not nature that subordinates women in a sphere of domesticity, but culture aided by the courts with the latter’s restrictive decisions against women such as prohibiting married women to own or dispose property.2 Feminist legal movements, however, approaches their battle from diverse perspectives, some of which are complementary, whilst others are plainly conflicting. Nonetheless, all feminist legal models blame the legal and judicial systems in perpetuating gender hierarchy. The liberal equality model insisted that men and women should be treated alike in all respects. This model insists on the “sameness” between men and women in arriving at rational choices and seeks to dispute the perception that women are inferior to men, and should therefore, be accorded the same legal treatment as men. This means that even favour accorded to women because of their sex violates equality because it results in the differentiation of women and men.3 This model was, however, eventually assailed as weak because of its failure to take into account real and actual differences between the sexes such as pregnancy in the employment area. On the other hand, the radical feminist model emphasises the differences between the sexes and rallies the legal system to give special treatment to women. Contrary to the liberal equality model, the radical feminist model compels the law to highlight such differences and accord relief to women to bridge the gap of inequality that separates them from men. Radical feminists believe that women are subjugated to the state and to men all of the time and are therefore, disempowered. Radical feminist legalists subscribe to the ideas of Catherine MacKinnon, Sylvia Law and Nan Hunter: MacKinnon regarded women’s sexual submission to men as false consciousness of individuals who are inherently oppressed, and; Law and Hunter believed that the position women take in sexual relationships is beyond the political and the legal, and the law and the courts must act to expand their options rather than shrink it.4 Another feminist legal approach is cultural feminism, which is linked to the work of Carol Gilligan, a Harvard University psychologist, who contended that women approaches moral and legal dilemmas from men contrary to the findings of child psychologists who had approached their studies from a masculine perspective. Thus, movers of this approach “equate women’s liberation with the development and maintenance of a female-centered counterculture”5 and support legislations that provide protection and benefits to pregnant women and mandatory child-raising leaves.6 Pre-Marital and Similar Agreements A premarital agreement is an agreement between two individuals who are contemplating marriage to take effect during the marriage. It usually covers spousal support, property allotment, and similar matters in the event of separation, divorce or death. Usually, individuals with substantial assets and property or those who have been previously in a marriage with subsisting children resort to this agreement. Young professionals with separate flourishing careers have been also observed to go for this type of agreement.7 It is usually the wealthy male, however, who seeks to protect himself from being potentially taken advantage by a financially weaker female that often typifies the image of a pre-nuptial agreement seeker.8 Premarital agreements are generally seen as disadvantageous and discriminatory to women. An American law professor, Gail Frommer, opined that such an agreement affects women, who are perceived to be economically weaker than the opposite sex, negatively than men so as to ultimately discriminate against them. Premarital agreements, therefore, must be regarded suspiciously rather than enthusiastically, according to the professor. She suggested that in enforcing premarital agreements, the courts must balance public policy and the freedom to contract. Public policy is presumed to aim at the eradication of gender equality, which implies that any contract that would place women at a disadvantageous position should be rejected. However, democratic governments also lean towards the policy of freedom to contract in keeping with the laissez-faire principle. To keep faith with both principles, Frommer suggested that any prenuptial agreement must only be enforced if either of the two is met: the agreement is just and fair to the economically weaker spouse, or; the process that was taken reaching the agreement was fair. Such substantive or procedural justice ensures that the prenuptial agreement eases up the disparate impact of the agreement to women and at the same time do not depart from the freedom to contract principle.9 On the basis of the previous discussions on the feminist legal theory, it can be anticipated that prenuptial agreements may likely be seen by legal feminists from two perspectives: either as detrimental to women, or; an opportunity for women to place themselves on equal footing with men. For the radical feminists who believe that women are vanquished by both the state and men in a society that men dominate, a premarital agreement is a disadvantage to women considering that they are usually more economically vulnerable than men. The role of the law must, therefore, ensure that any agreement that purports to divide property and assets between the couple must work to the advantage of women more than men. Evidently, the cultural feminists are expected to share the same perspective considering that they believed that women are placed in an inferior position to men as dictated by biological and cultural realities. However, it would be difficult to imagine the liberal feminists to insist that the courts intervene in such agreements to intentionally place women in a better position than men considering that their entire argument is hinged on the equality of the sexes. The case of Radmacher v Granatino10 reverses the stereotypical position of men and women in premarital agreements and should be a fascinating study for legal feminism. What makes this case doubly interesting is that the courts suddenly made a decisive turnaround from their usual stance on premarital agreements. Courts viewed these contracts as not holding a decisive role in divorce or separation cases because courts have the statutory prerogative to entirely reject them if they want to. The uncertain role of prenuptial agreements was lamented by the Consultation Paper published by the Home Office (1998) entitled Supporting Families as discouraging couples from resorting to them. Perhaps aware that the UK remains one of the few jurisdictions that do not accord legal weight on premarital agreements, the Home Office offered to study and to consider legislating prenuptial agreements as binding documents.11 The recent decision of the Supreme Court in the Radmacher case may pave the way for this change. Previous decisions of the UK courts on ancillary relief, whether they involve premarital agreements or not, look to section 25 of the Matrimonial Causes Act 1973 for guidance. The said provision lays down the factors that the courts should take into consideration when handing down ancillary decisions during divorce or annulment proceedings. These factors include the following: income and other resources; financial needs in the present and in the future; usual standard of living; age of the parties and duration of marriage; disabilities; contributions; conduct, and; the value of the marriage. This provision underpins the uncertainty of prenuptial agreements as prenuptial agreements are perceived to oust the jurisdiction of the courts and contrary to public policy.12 Past decisions of the courts attest to the unreliability of prenuptial agreements in divorce cases. In many of these decisions, prenuptial agreements were disregarded to favour spouses, usually women, on the ground that they were against public policy. In F v F (Ancillary Relief: Substantial Assets)13, for example, the Court disregarded a prenuptial agreement entered into by the spouses where the wife was to receive an income of the same amount that a retired German federal judge would get for his pension if the marriage breaks up and divorce proceeding is instituted. The husband pushed for the enforcement of the agreement but the wife objected. In finding for the wife, the Court stated “The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be universal application throughout our society.”14 The rejection of the Court of the prenuptial agreement, if seen from the point of view of radical feminism and cultural feminism models is justified by the inherently dominant position of men in society and the essentially weak economic position of women foisted upon them by biological and cultural realities, which the courts must help correct. Many family cases decided by the courts reflect the legal feminist theory, particularly these two feminist perspectives. The case of White v White15, for example, seems to enforce the cultural feminist view by allowing the appeal of a woman spouse against a lower court judgment that awarded her only a fraction of the ?4.6 million net assets of the family during the hearing for ancillary relief in a divorce proceeding. On the ground that justice dictates a universal application of a single principle of fairness, a home-maker and child-carer must stand in equal footing with the money earner of the family unless good reason dictates otherwise. The suspicious attitude of the courts towards prenuptial agreements underpins their concern to protect the weaker party, which, in most cases, is the wife. As was held in NG v KR,16 “Although civilization has made much progress over the centuries and the roles of men and women have altered, so that in some cultures, equality has been achieved that does not mean that fundamental human nature has changed. Whilst the Court must permit of current mores and will take full account of contemporary morality it should not be blind to human frailty and susceptibility when love and separation are involved. The need for careful safeguards to protect the weaker party and ensure fairness remains.”17 As earlier stated, the Radmacher v Granatino18 is foreseen to insinuate a new definitive role for prenuptial agreements in divorce proceedings, as well as break the stereotyped role of men as the primary enforcers of prenuptial agreements.19 This scenario could either please or agitate legal feminists, depending on which side of the fence they are standing. The Radmacher case involves a prenuptial agreement previously entered into by a couple, which simply provided that none of the parties would acquire benefits from the property of the other at any time during and after the marriage. The German wife was extremely wealthy whilst the husband was a well-earning banker, but eventually turned to research study at Oxford. Eight years later after the marriage, the wife filed for a divorce and contrary to the prenuptial agreement, the husband filed for ancillary relief, both for periodical payments and a lump sum. The High Court awarded an amount to afford the husband a home in London where his children could come and visit him as well as provide him a yearly income of ?100,000 for life. The prenuptial agreement was not given much importance. On appeal by the wife, the Court of Appeal modified the decision to give more weight to the prenuptial agreement and awarded money only to cover the husband’s expenses as a father but not for his personal needs. The SC dismissed the husband’s appeal, citing Macleod v Macleod 20 applying its finding on nuptial agreements to pre-nuptial agreements: “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implication unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” The Radmacher decision is certainly going to significantly affect the goals of radical and cultural feminists. It sets a different tone in that it extends to prenuptial agreements a rebuttable presumption of applicability only conditioned by manifest unfairness. Paragraph 75 of the decision states, “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.”21 An application of this dictum where the party seeking to claim against the express term of a premarital agreement is a woman will certainly earn the ire of legal feminists, of the radical and cultural feminist kinds. The radical feminists will view such a decision as unfair because it will only aggravate a woman’s subjugation. Similarly, the cultural feminists will object on the ground that a woman, the supposedly culturally and biologically burdened of the sexes, should receive special attention and help from the legal and justice system. The liberal feminists, however, may not be able to object at all lest their own words will come back to bite them. Cohabitation and Surrogacy Agreements Cohabitation agreements are essentially the same as pre-nuptial agreements except that they are executed by parties who are living together under one roof as man and wife without the benefit of marriage. The nature of cohabitation agreements even make them more difficult to enforce legally than prenuptial agreements. However, in Sutton v Mishcon de Reya and Gawor & Co22, the Court opined that cohabitation agreements are likely to be given weight because there is nothing inherently contrary to public policy in an agreement that settles and divides property and other assets of two persons living together as man and wife without the benefit of marriage, so long as criminal law is not breached.23 Legal feminists are expected to support any legislation or court decisions that enforce cohabitation agreements favouring women or court decisions that look into such kinds of agreements balancing, at least, the terms to favour both parties to a cohabitation relationship as what courts previously did in cases of prenuptial agreements. This is especially true considering that statistics show the rising trend in cohabitation in England and Wales and the fact that there is no legislation that governs cohabitation.24 There are however, very few precedents on cohabitation agreement cases. Comparatively, cohabitation agreements involved no “default duties” that can disrupt contractual agreements, such that courts will be less likely to be distracted from the consideration of its terms.25 . One of the few significant cases involving cohabitation is the case of Stack v Dowden,26 which did not directly involved an express cohabitation agreement, but a claim for a division of joint tenancy upon the breakdown of the cohabitation. The case contemplated the rebuttable presumption of equality in joint tenancy under circumstances where the contributions of the cohabiting partners were unequal. The Court decided in favour of the woman finding that her contribution to the joint tenancy was bigger than that of the man under circumstances indicating the intention to keep their finances separate. The fact that no particular legislation governs cohabitation arrangements and that the obligations and duties of the parties thereto are not defined by law will likely make it difficult for legal feminists to appreciate even the Dowden case. Property relations in cohabitations are generally governed by general property and contract laws, outside of the jurisdiction of s 25 of the 1997 Act and the family courts. It is expected that property division of the common law couple will be decided on their contractual terms without the leverage extended to courts by s 25. On the other hand, a surrogacy agreement is one where a woman agrees to carry a child in her womb for a full term and delivers it on behalf of a couple, who usually cannot bear children. Surrogacy, as a commercial enterprise is illegal in England under the Surrogacy Arrangement Act 1985, but is allowed if not made for profit. The implication of this is that any contract on surrogacy cannot be relied to hold up in court and the woman who bore the child can refuse to hand over the child despite previous agreement.27 Under the Human Fertilisation and Embryology Act 1990, the surrogate mother is the legal mother, and legal parenthood can be transferred only to commissioning after birth upon adoption or court parental order.28 The present law in this jurisdiction could either be perceived as pro-woman or not by legal feminists depending on the agreement between the parties. However, all types of legal feminists would most likely agree that the woman’s superior right over the child they bore extended by the Surrogacy Arrangement Act 1985 confers to them a right that nature granted to them in the first place. However, if the agreement includes financial considerations and this cannot be enforced in court, it would be advantageous to women because the other party or parties may not do their end of the agreement considering that the surrogate mother has no recourse to the courts. Conclusion The recent court decision in Radmacher v Grananito may have a disparate impact on women. Considered as the economically vulnerable gender, a sweeping application of the Radmacher dictum in the future where prenuptial agreements will be given definitive weight in ancillary relief cases do not bode well for women. It will present a more difficult prospect for women to provide evidence in court that a prenuptial agreement, which is conferred a rebuttable presumption of fairness, is not fair at all. References: Barlow A, ‘Cohabitation Law Reform – Messages from Research’ (Feminist Legal Studies Vol 14(2), 167-180 2006). Boumil M & Hicks S, Women and the Law (Wm. S. Hein Publishing 1992). De Cruz P, Family Law, Sex and Society: A Comparative Study of Family Law (Taylor & Francis 2009). F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR. Furchtgott-Roth D & Stolba C, The Feminist Dilemma: When Success is not Enough (American Enterprise Institute 2009). Hayward A, ‘The Gender Dimension of Prenuptial Agreements: Radmacher v Granatino (2010)’ (Inherently Human 2010) < http://inherentlyhuman.wordpress.com/2010/11/02/the-gender-dimension-of-prenuptial-agreements/> accessed 5 April 2011. Home Office, Supporting Families: A Consultation Document (Home Office 1998). Katz S, Family Law in America (Oxford University Press 2003). Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown, a Consultation Paper’ (The Stationery Office 2006). Lowe N, Prenuptial Agreements: The English Position (indret.com 2009) accessed 4 April 2011. Macleod v Macleod [2008] UKPC 64. Matrimonial Causes Act 1973. Minda G, Postmodern Legal Movements: Law and Jurisprudence at Century's End (NYU Press 1995). NG v KR [2008] EWHC 1532. Posnansky J, ‘Prenuptial Agreements in Wales and England’ (IAML Law Journal Vol. 1 2007). Probert R, Family Life and The Law: Under One Roof (Ashgate Publishing, Ltd. 2007) Radmacher v Granatino [2010] UKSC 42. Stack v Dowden [2007] UKHL 17, [2007] 2 WLR 831. Statsky W, Family Law: The Essentials (2nd Edition, Cengage Learning 2003). Sutton v Mishcon de Reya and Gawor & Co [2004] 1 FLR 837. Surrogacy Arrangement Act 1985. Wellbank J, ‘Too Many Mothers? Surrogacy, Kinship and the Child’ (Oxford University Press, Medical Law Review 2002;10:271-294). White v White [2001] 1 AC 596. Read More