APPLICATION AND REMEDIES

So far in this chapter, I have argued that (i) the domestic relationship constitutes an institution for the purposes of the institutional approach and (ii) unpaid, gendered domestic work constitutes an infringement of constitutional rights of the institutionally less powerful party by the institutionally more powerful party.

As indicated above, there exists a range of policy-based as well as legal responses designed to mitigate institutional inequalities and rights violations within domes­tic relationships, including the question of unpaid, gendered domestic labour. The institutional approach, of course, speaks the language of horizontal rights, and therefore seeks to address only one specific form of mitigation. The institu­tional approach itself may be applied to a subsisting relationship: for example, by treating domestic work as a financial contribution that triggers a joint right in the marital property that may only be legally in the name of the male spouse, and precludes one spouse from disposing of it without the consent of the other. However, for reasons discussed above, in this chapter, I will limit the discussion to the enforceable horizontal rights at the time of separation.

The question of separation or exit - and how it links back to inequalities and rights violations within the domestic relationship - has been discussed in the previous section. To put it schematically: unpaid, gendered domestic labour reinforces and entrenches the differences in institutional power that already exist between the spouses when they enter the domestic relationship. It ensures that the income gap grows larger during the course of the relationship, and that property and assets are more likely to be legally held by the male spouse.

At the end of the previous section, I framed this in terms of horizontal rights violations: of equality and non-discrimination, of the right to property, of the right against forced labour and the right to life and livelihood. At its heart is the non-recognition of domestic work as work (and which, therefore, would merit remuneration). One way that the rights framework can mitigate this non-recognition is to deal with its consequences. In case of separation at an abstract level, it would mean a legal regime where non-recognised domestic work would be treated as a contribution to the domestic relationship on equal terms with recognised and remunerated ‘outside’ work. This, in turn, would require that, notwithstanding formal legal title, the female spouse would bear an equal right to marital property as the male spouse (in whose name it might be), that would be enforceable against the male spouse. How this mitigates institutional imbalance of power is evident: it ensures the legal recognition of (unpaid) domestic labour through the means of an enforceable property rights, and crucially facilitates exit from the institution. As I showed in the previous chapter, and as Fraser has specifically pointed out in the context of domestic relationships, there is a direct correlation between ability to exit from an insti­tution and having a voice (ie equality) in the institution. Thus, in this deeper way as well, this solution addresses (to a limited and partial extent, as indicated above) institutional differences in power and rights violations within domestic relationships.

This link has been made by theoreticians (‘in the event of divorce the wages of both a primary wage earner and a primary caregiver should be treated as joint property’^[682]) and by various jurisdictions in legislation (as we shall see below), and also has cross-jurisdictional purchase.

Two preliminary points: first, as flagged above, it may be argued that with changing work patterns, there now exist a number of domestic relationships that are not adequately characterised in the manner articulated above, ie rela­tionships where both spouses hold equal power, or where the male spouse opts to engage in domestic work and care work. There are also relationships which last for very short durations, and to which (it is widely accepted) default distribution rules ought not to apply. Now, while it is true that relationships exist along a spectrum, recall that, as argued in chapter five, the institutional approach specif­ically allows for the presence of departures and exceptions, as it stipulates that individuals are not ordinarily able to overcome institutional differences in power by dint of their specific or peculiar circumstances. It may then be objected, however, that the solution prescribed above would lead to unjust results. To this it may be answered that legislative regimes and judicial doctrine (as we shall see below) allow judges the discretion to depart from general principles of prop­erty distribution at the time of dissolution, depending upon the circumstances. In other words, the law recognises that relationships are structured in complex ways, and that the rules governing separation cannot operate rigidly. The insti­tutional approach, it is important to note, does not deny this flexibility: what it does do is to provide a principled constitutional framework within which such cases ought ordinarily to be adjudicated.

This leads to a second, preliminary point. In many jurisdictions, there exists the option of marriage contracts that establish the terms upon which both parties are to enter the domestic relationship, its maintenance, as well as the consequences that will follow upon separation. One significant impact of the institutional approach is to place constraints upon the scope of the contracts: parties ought not ordinarily, for example, be able to ‘contract out’ of the threshold rights framework that will apply on dissolution,^[684] much like an indi­vidual cannot ‘waive’ a constitutional right. This is in recognition of the fact that because of institutional differences in power (which the horizontal rights frame­work is meant to mitigate), such contracts are structurally unequal^[685] (here there are similarities with the argument advanced in the previous chapter). Needless to say, as in the last chapter, the institutional approach represents only a thresh­old base of rights. Through contract, parties can always agree upon more rights being vested in the rights bearer than the institutional approach requires - but they cannot settle for less. This, of course, remains subject to the judicial discre­tion for ‘exceptional cases’ discussed above.

I will now present specific examples. Here, I shall consider how different jurisdictions have dealt with the issue of equal property rights upon separation, either through legislation or through adjudication, and how the institutional approach can facilitate generative engagement with private law. As in the previ­ous chapter, it is not my intention here to establish a regime of constitutional family law, available to litigants at the first instance. As in the case of labour law, the issues that arise out of the domestic relationship, and its breakdown, are multifaceted and fine-grained: for instance, just the issues of what ought to count as ‘relationship property’ and what ought to count as ‘separate property’, where the marital home falls within this scheme, and how the length of the rela­tionship ought to affect this question, have proven to be hugely controversial, with jurisdictions choosing to address them in a bewildering range of ways.^[686] Undoubtedly, many of these issues are best served by a legislative (or, as we shall see, common law) framework taking a first stab at dealing with them.

I will take these different constitutional contexts in turn. First, I will consider situations where the option of enforcing constitutional horizontal rights directly is unavailable, and the only role open to courts is to work in and around the interstices of legislation. Consider New Zealand’s Property (Relationships) Act 1976 (as amended in 2001), which establishes a presumption of equal sharing of property at the time of separation.^[687] This presumption may be displaced by evidence of differential contributions to the marriage, but is specifically prem­ised on the rejection of the assumption that financial contributions are weightier than non-financial contributions.^[688] One of the founding principles of the Act was to address the consequences of the gendered division of labour within domestic relationships^[689] - a division that, notably, persists to this day. Thus, as recently as 2019, in an exhaustive review of the Property (Relationships) Act, the New Zealand Law Commission noted that ‘the division of functions within families along traditional gender roles is still common in New Zealand’.^[690]

The individual sections of the Property (Relationships) Act have been subject to considerable interpretive dispute (especially on issues regarding what consti­tutes ‘property’, and the distinctions between the different kinds of property contemplated by the Act). It is not possible here to examine the legislation in complete detail.^[691] By way of illustration, however, consider the following issue, which demonstrates how and where the institutional approach might be interpre- tively useful. Because of conflictingly worded provisions, it was unclear whether property acquired during the marriage by virtue of separate property (which was exempt from equal distribution at the time of dissolution) would also be treated as separate, or as joint property, at the time of dissolution.

I emphasise the point against the background of s. 18 because in each of the eight areas some kind of assessment must be made; and it is not easy to add together the significance of unlike things (some tangible, some untangible), in order to esti­mate the total achievement of the one spouse, let alone compare it with a different achievement by the other. Furthermore, despite the injunction in s. 18(2) against preconceptions which would favour the value of monetary contributions, it is money which has the characteristic of being so easily measured for size that at a certain level weight alone might be allowed to submerge equally valuable or even superior but unquantifiable contributions of a non-monetary kind. The problem is accentuated by a tendency to attribute the whole of the money achievement to the husband or wife who seems to be directly responsible for it. Usually it is the husband. Yet it is the rare case where one spouse can properly claim sole credit for a monetary contribution which has been derived during the marriage from earnings or from some commer­cial enterprise. Usually it is an accomplishment made possible by the support on the home front of the other spouse; and whenever that is the position each should receive appropriate credit. (emphasis added)^[693]

Thus the Court of Appeal held that, under the scheme of the Act, separate property was to be treated as a residual category, and any interpretive doubt had to be resolved in favour of joint property (and thereby equal division).^[694]

As in the Uber case discussed in the previous chapter, the court did not explicitly contextualise what it was doing in terms of the institutional approach. However, much like in the Uber case, the institutional approach has explanatory power in helping understand the bases of the court’s reasoning, and in deepening it, in the following two ways: first, as argued above, the ‘cycle of vulnerability’ that is baked into the institution of the domestic relationship commences before spouses formally enter the institution; and secondly, as we have seen, inequali­ties that are exacerbated during the course of the domestic relationship have a direct bearing on the difficulty of exit (which, in turn, results in a diminishing of ‘voice’ while in the relationship). The institutional approach, therefore, expands on the Court of Appeal’s insight that the purpose of the law was to guarantee ‘the equal status of women in society’ by bringing an institutional lens to the question of what, precisely, constitutes ‘equal status’ in the context of patriar­chal family structures and domestic relationships. Thus, it is the institutional approach that establishes the interpretive link between that abstract purpose - articulated by the term ‘equal status’ - and the specific finding that separate property is meant to be limited to a residual category.

It is important to reiterate, as indicated above, that this jurisprudential development has been broadly led by the courts, acting under the wide discre­tion provided by the New Zealand legislation. This provides an example for other jurisdictions where such development has not yet taken place, and where, therefore, the institutional approach can serve as an interpretive guide for the development of jurisprudence.

Consider, for example, the case of India (which also, for the purposes of this example, gives us an instance of our second constitutional context: where a written constitution with enforceable rights exists, but there is no direct horizon­tal right applicable to the case at hand). India’s Domestic Violence Act already recognises that, in the case of domestic relationships, institutional differences in power require formal property rules to be overridden. Thus, section 19 of the Act allows judges to pass ‘residence orders’ that restrain the male spouse (or his family members) from evicting the female spouse from the shared household, regardless of who has legal or equitable ownership over the shared household - and also prevents the male spouse from alienating the property while proceedings are pending.^[695] However, despite significantly hemming in the male spouse’s property rights, the Act stops short at according to the female spouse any legal right in the shared household. Consequently, if domestic violence proceedings end in separation, the protection accorded by the residence orders ends and common-law rules of maintenance - limited to the female spouse’s ‘reasonable needs’ - become applicable. There is thus a gap between the Domestic Violence Act’s recognition of institutional power imbalances (and its framing of prop­erty remedies, among others) and the absence of such recognition at the time of separation. In the absence of a statute equivalent to the Domestic Violence Act that governs the situation post-separation, the institutional approach (grounded within the Indian Constitution, which guarantees the rights to equal protection, life and livelihood, and forced labour) can serve as a source for female spouses to make post-separation claims upon male spouses. And, pending the enactment of a more detailed statutory framework, the evolution of the law can, indeed, be at the instance of the judiciary.

I will now consider the case of direct constitutional application. Previously in this chapter, I discussed the judgment of the Colombian Constitutional Court, which, in language very similar to the institutional approach, found a right to equal possession of the matrimonial property, based on uncounted domestic work. In that case, the Supreme Tribunal had refused to prevent the eviction of a widow from the matrimonial home that her husband had owned and had bequeathed to his sister.^[696] The Supreme Tribunal noted that no quantification of the widow’s contribution to the matrimonial home had been provided, and therefore she could not claim any interest in the property. While overturning this judgment, the Constitutional Court noted that it had the effect of ‘invisib- lising’ domestic work,^[697] which would only serve to deepen inequalities within social relations.^[698] In language redolent of the institutional approach, the Court went on to observe that ‘cultural, ideological, and structural foundations, and the logic of sexual subordination’ (emphasis added), were constituted and sustained by the artificial distinction between ‘productive’ (and remunerated) and ‘non-productive’ (and non-remunerated) work, even though the latter was vital for the economy, for development and for the accumulation of capital.^[699] On the basis of this analysis, the Court concluded that a refusal to factor in unpaid domestic work violated the Colombian Constitution’s guarantee against

196 Application II: Domestic Relationships and Unpaid Labour non-discrimination, and in this specific case created a right of possession in the matrimonial property and a protection against eviction without due process.^[700]

The judgment of the Colombian Constitutional Court shows how institu­tional reasoning can be invoked by courts to apply constitutional rights inter se within a marriage or a domestic relationship, with respect to property claims. As indicated above, while the relationship in this case was ended by death, the Court’s reasoning applies equally to separation. However, because of the narrow scope of the case before it, the Court was unable to go beyond finding a right of possession, and did not rule upon the larger claim before it: namely, that equal rights in the context of marriage required a stronger finding, that of a right to the property, and not only a right of possession.^[701]

The last of my examples, however, does provide an illustration of the direct, horizontal application of constitutional rights in the manner discussed in this chapter: the case of Kenya.

Under old Kenyan family law, only financial contributions were taken into account in deciding the share of the parties upon separation.^[702] Explicitly seek­ing to change this position,^[703] the Kenyan Constitution of 2010 contained a directly applicable horizontal rights provision (Article 45(3)), borrowed from the UN Convention on the Elimination of all Discrimination against Women, which stated: ‘Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.’^[704]

In Agnes Nanjala William v Jacob Petrus Nicholas Vandergoes, the Court of Appeal held that Article 45 of the Kenyan Constitution could be applied directly - in the absence of an existing statutory framework - to require an even division of assets at the time of separation.^[705] This is particularly relevant, as it involved the Court fashioning a remedy directly from a horizontal constitutional provision, broadly along the lines of what the institutional approach would require.

Subsequently, however, the Kenyan legislature passed the Matrimonial Property Act of 2013, which required judges to divide property in accordance with the ‘relative contribution’ of the spouses, where ‘contribution’ included non-monetary contributions, specifically listing domestic work, childcare and companionship. The constitutionality of the Act was challenged in Federation of Women Lawyers v Attorney-General, primarily on the basis that the difficulty in proving non-monetary contribution would, in effect, make it discriminatory

against women. The High Court of Kenya rejected this argument, however, on the grounds that the legislature had already taken into account, through its list­ing of non-monetary contribution, the gendered character of domestic work, and that it was equally essential to prevent non-contributing spouses from taking ‘advantage’ of marriage.^[706]

But what was missing from the analysis of the High Court was the institu­tional insight that the disadvantage that the 50 per cent rule-of-thumb sought to mitigate was not dependent on the individual characteristics of the parties (and whether or not they ‘contributed’ to the marriage), but was, at least in part, structural in nature. An application of the institutional approach here may have led the High Court to understand that while the Matrimonial Property Act went some way to recognising and mitigating institutional inequalities within the marriage by explicitly listing domestic work, childcare and companionship as non-monetary contributions, it did not do enough to secure the constitutional guarantee of equal rights within the family. In other words, it would have led to a potentially different outcome.

Indeed, an interpretation of the Matrimonial Property Act that did not elevate an equal division to the status of an unalterable constitutional principle (as the Agnes Nanjala Williams case had done), but nonetheless maintained equality as a guiding principle that could be dislodged in exceptional circumstances, would have been well within the bounds of judicial remit. This, it may be noted, would also be consistent with the point made above, ie that the institutional approach provides a basic set of rights to mitigate imbalances in institutional power; however, legislatures and courts are always free to go beyond that when fashioning remedies.

The case of Kenya therefore illustrates the role that the institutional approach, and insights from that approach, can play when we consider institutional inequalities and rights violations within domestic relationships. First, Article 45(3) of the Kenyan Constitution provides us with an example of a hori­zontal constitutional right, as applied to domestic relationships, broadly in line with what the institutional approach would suggest. Secondly, the judgment of the Court of Appeal in Agnes Nanjala Williams is an illustration of how this horizontal right can be applied directly, in the absence of a legislative frame­work, in a manner that the institutional approach would broadly support and whose conclusions would be strengthened if it were to be invoked. And thirdly, the analysis in Federation of Women Lawyers shows how, when an (insufficient) statutory framework is enacted, the institutional approach could help judges in identifying where the inadequacy lies and how to mitigate it through interpre­tive techniques.

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