Viewing domestic property disputes from a vulnerability perspective

This article argues that the legal regime applicable to cohabitants on separation is based on liberal ideals of individual autonomy and self-sufficiency. This can be seen chiefly in the preference for financial contributions in order to establish a constructive trust. The preference for financial contributions marginalises and stigmatises those who make ‘caring contributions’ within an intimate relationship and are thus unable to conform to the ideal, economically independent legal subject.

The article proposes that property disputes between former intimate partners should instead be analysed through the lens of vulnerability theory. It argues that so-called ‘relational vulnerability’ occurs where an individual undertakes caring or domestic labour within the context of an intimate relationship, and suffers economic hardship as a result. The state has a duty to respond to this vulnerability through distribution of property on separation.

The article further suggests that vulnerability theory provides a preferable basis for analysing disputes to liberal theory, as it avoids the tendency to rely on concepts such as altruism and needs when explaining caring contributions and the law’s response to them.