OSLS Vol 6, No 6 (2016): Radically Rethinking Marriage

30 Dec 2016

(Special issue)
Issue edited by Profs. Nicola Barker (Kent Law School) and Suzanne Lenon (University of Lethbridge).

Nicola Barker, Suzanne Lenon: Radically Rethinking Marriage: Introduction


This special issue of the Onati Socio-Legal Series offers inter-disciplinary, feminist perspectives that collectively ‘re-think’ the institution of marriage, not only in the field of legal discourse and institutions but also in the humanities and social sciences as well as through activisms. With a focus on jurisdictions in Europe, North America and Africa, the articles included in this issue challenge normative assumptions about marriage, reconsider forms of conjugality, re-write judicial interpretations and problematize legal and activist interventions and reasonings.

Rosemary Auchmuty: The Limits of Marriage Protection: in Defence of Property Law


This article takes issue with three assumptions commonly present in recent English family law scholarship: that unmarried couples would be ‘better off’ married; that the property law principles that presently apply to cohabitants’ property arrangements are complex and confusing, not to say inadequate; and that cohabitants should instead be protected by a family law-style statutory regime such as that proposed by the Law Commission in 2007. It argues that both the legal explanations and the scaremongering tone of much of this scholarship have been unhelpful (and sometimes inaccurate) in misleading non-specialist lawyers, but also non-lawyers and the general public, as to the precise nature of the respective protections offered by property law and family law, and that the proposed solution is not the way to tackle the real problem, which is not the need to protect cohabitants, but how to tackle gendered inequality in relationships. Instead, it suggests that legal discussions should employ more accuracy and precision about the law in principle and a more critical approach to how it works in practice (especially considering recent developments in the family courts), and that better conveyancing practice and better public education would help to empower individuals to make informed decisions as to their property arrangements.

Sharon Thompson: In Defence of the ‘Gold-Digger’


This article examines the gold-digging trope in family law. It explores the etymology of the term and how it has been employed in cultural and legal contexts, such as media, parliamentary debates and case law. It is argued that the gold-digger construct has shifted, in that it was once applied only to women who formed relationships with men for financial gain, but is now used against all women in the context of modern equality claims in family law, regardless of their intentions. Today, the gold-digger is any woman who seeks a fair share of family assets on divorce, and the concept informs ideas not only of claims to financial relief on divorce, but also the enforceability of prenuptial agreements.

Nicola Barker: Rethinking Conjugality as the Basis for Family Recognition: A Feminist Rewriting of the Judgment in Burden v. United Kingdom


In Burden v. UK, elderly cohabiting sisters unsuccessfully challenged their exclusion from civil partnerships. They claimed this exclusion was a violation of the prohibition of discrimination (Article 14) and the right to peaceful enjoyment of property (Article 1 of Protocol 1) under the European Convention on Human Rights because the surviving sister would be liable to pay inheritance tax whereas a lesbian couple could avoid this liability by registering a civil partnership. The facts of the case and the judgments by both the Chamber and Grand Chamber of the European Court of Human Rights raise interesting questions about the extent to which it is justifiable to base legal protections on conjugality. In this paper, I will explore these questions and consider how the judgment could be rewritten from a feminist perspective.

Sally Goldfarb: Divorcing Marriage from Sex: Radically Rethinking the Role of Sex in Marriage Law in the United States


In 2015, the U.S. Supreme Court required all states to permit same-sex couples to marry. Many people assume that marriage equality for gay, lesbian, bisexual and transgender people has been achieved simply by eliminating the requirement that two individuals entering a marriage must be of different sexes. However, family law in the United States has traditionally required not only that married people are of different sexes, but also that they perform heterosexual intercourse. This focus on heterosexual performance threatens to undermine the legal marriages of gay, lesbian, bisexual and transgender people. It also threatens the dignity, privacy, and legal validity of some heterosexual couples’ marriages. Contrary to current practice, the law should make no assumptions about the existence or type of sexual behavior between spouses that is necessary to create and sustain a marriage.

Elsje Bonthuys: A Patchwork of Marriages: The Legal Relevance of Marriage in a Plural Legal System


Like other former colonies, South Africa has a plural family law system, which has historically recognized the polygynous marriages practiced by indigenous African people. However, recognising these marriages by way of legal pluralism does not afford them equal status with monogamous Judaeo-Christian marriage, nor does it ensure gender equality within families. Instead, the interaction between the colonial and apartheid socio-economic oppression of black people on the one hand, and legal pluralism on the other hand, produces a highly complex family law system, best described as ‘a patchwork of patriarchies.’ This paper argues for a move away from conjugality as the basis of family law in order to recognize kinship relationships which have been central to African family practices and which have assisted many families to weather colonial and white domination. This move away from conjugality would also acknowledge the decreasing incidence of marriage and nuclear families in contemporary South Africa and would shift the focus of legal regulation to protecting socially valuable relationships, rather than protecting marriage as an institution.

Suzanne Lenon: Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference


In November 2011, the British Columbia Supreme Court released its judgement in Reference re: s.293 of the Criminal Code of Canada, upholding the prohibition on polygamy as constitutional. The Polygamy Reference, as it is known, concluded that the pressing and substantial objective of s. 293 is the prevention of harm to women, to children, and to the institution of monogamous marriage. This paper analyzes the submissions made by the feminist legal education organization, West Coast LEAF, one of the few feminist 'voices' taken seriously by the court. The apprehension of polygamy's harms was central to the Reference case. West Coast LEAF offered one of the most nuanced interpretations of how the criminal prohibition on polygamy should be interpreted with respect to harm. Yet as this paper argues, its position conceals and is underpinned by racialized relations of power that, however unwittingly, give weight to and indeed require the racial logic of white settler state sovereignty articulated in the Polygamy References' overall narrative.

Christian Klesse: Marriage, Law and Polyamory. Rebutting Mononormativity with Sexual Orientation Discourse?


This paper traces the genealogy of sexual orientation discourse in US legal scholarship and explores potential drawbacks of the articulation of a sexual orientation argument in the field of relationship recognition. After a long period of refraining from campaigning for legal recognition of multi-partner relationships, polyamory activists have recently shown a stronger interest in litigation. This paper identifies reasons for this shift in recent successes of the campaign for same-sex marriage rights and critically discusses proposals to frame polyamory as a sexual orientation to achieve multi-partner marriage rights through litigation. I argue that advocating a sexual orientation model of polyamory is likely to reduce the complexity and transformative potential of poly intimacies, limit the scope and reach of potential litigation, obstruct the capacity of poly activism to form alliances and increase the likelihood of poly activism to settle for legal solutions (i.e. marriage) that are exclusive and reproductive of a culture of privilege.

Jennifer Koshan: Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA


This paper is a feminist judgment in R v JA (Supreme Court of Canada 2011), a spousal sexual assault case involving the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The Supreme Court’s ruling in JA has generated critique and debate amongst feminist and law and sexuality scholars that pits women's equality and security interests against their affirmative sexual autonomy. Using the methodology of a feminist judgment, I endeavour to analyze whether it is possible to adopt an approach to advance consent that protects or at least balances all of these interests. My particular focus is the spousal context, where courts have often interpreted the sexual assault provisions of the Criminal Code to the detriment of women’s sexual integrity and equality, yet where arguments about affirmative sexual autonomy have also predominated. Taking a harm-based approach to criminality that considers both negative and positive sexual autonomy, the judgment concludes that advance consent should not be considered valid without certain legal safeguards being put into place.

Ummni Khan: Take My Breath Away: Competing Contexts Between Domestic Violence, Kink and The Criminal Justice System in R. v. J.A.


In the R. v. J.A. case, a man was criminally convicted for performing sexual activities on his partner while she was rendered unconscious through erotic asphyxiation. Evaluating the legal and ethical stakes of the case is challenging because the complainant changed her testimony from non-consent to consent at trial, and the couple’s history includes both kinky sex and domestic violence. In this paper, I problematize the legal reasoning of the trial judgment (R. v .A.(J.) 2008 ONCJ 195), the Supreme Court of Canada’s majority decision ([2011] 2 S.C.R. 440), as well as the LEAF factum, and some of the feminist commentary. I argue that both the legal and the feminist discourses privilege domestic and sexual violence as the preeminent context in this case, erase or gloss over kinky eroticism and subjectivity, and advance a carceral politics that privileges the criminal justice system as an articulator of truth, and a vehicle for gender justice.