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Case Discussion

Question:

Discuss about the Foundation of Law for Relationship Matters and Feminist.

The foundation of law discussed both the emergence and importance of the rule of law. Basically, the rule of law is currently heard in all aspects of life. It covers the economic aspect, socio-political aspect, human development and currently has also covered the technology aspect in whole. This paper would be a discussion of a case in concern of relationship matters, and feminist legal theory in general.

In this case, the main issue case was to decide on the existence of aa de facto relationship. The judge had held that there was no de facto relationship, just a merger of two lives.  The determinants that suggested a de facto relationship were; the long relationship of 17 years, a steady sexual relationship without the involvement of other partners but excluding the fact that respondent didn't abandon his family. The defendant provided the applicants with financial support which amounted to a monthly contribution of $3000 for 11 years. Lastly,   the respondent financed the applicant's home with $24 000.

On the other side, some outcomes suggested that there was no de facto relationship following the provisions of the family act.[1] First of all, there was a fact that each party had its separate home.  Secondly, when looking on the side of the respondent, the court found that his household encompassed his family and he also supported his kids. Also, the court found that the respondent's children were young when the relationship started. Another thing that the court examined was the fact that these parties relationship was secret.

Furthermore, there was evidence that the respondent told the applicant that if the world demands that he choose between the applicant and his wife, the respondent was without a doubt going to settle on his wife and family. And again, despite the mentioned monthly contribution and the $24,000 for housing, the parties had no joint bank account. Plus, they had never been engaged in joint investments as a couple. They held their properties their respective names.

In terms of work and socialization, the applicant's witness brought evidence that parties didn't share with each other’s friends.  On the same token, there is a fact that the respondent got a thriving business where the applicant used to work for some years.  Even though the applicant was working, she didn't engage with other defendant’s business partners. After the end of applicant’s involvement working at the business, that also ended her engagement with the firm.

Conspicuously, the court found that the respondent didn't involve himself in the applicant’s life in anywhere she lived either between 1996 and 2006 or after 2006. Equally important, the respondent stated that he hoped that their relationship could be permanent, though he conducted it as he perceived it. The judge referred to the respondent's reply when the appellant's counsel, Mr Galloway tried to insist that there was a relationship. To his answer, the respondent said that both parties had a relationship, and had an affair.

De Facto Relationship

Something else that defeated the existence of a de facto relationship was the consideration of the time the time that the parties spent together. In particular, the court found that the respondent spent very little time with the applicant’s family. The judge referred to the statement from the respondent telling the applicant's mother that their relationship wasn't an adventure. In support of this, the judge considered the applicant's affidavit at paragraph 36 and 37. These statements suggested coupledom. Besides, the judge also considered the evidence brought by the applicant's friends. It also didn't insinuate a de facto relationship.

At the same time, the court looked at the presumption of a merger or a coupledom. At paragraph 60, the judge gives an explanation of a de facto relationship. He said that such relationship should show that the parties merged their lives to live as a couple on a real a domestic essence for practical purposes. Following this explanation, the judge found grounds of a merger in paragraph 65. The judge found that the parties lived and owned separate homes among other factors.

The feminist legal theory is more of a debate on the relation between law and women. These theories appear as a set of opinions, all emerging as factual claims, evaluations, advocacies, as well as other activities interlocked in by thinkers. These theories are different, and they are based on their approaches, objectives, and emphasis. In general, feminism is not attached to any one discipline, but it confers a hypothesis of gender and the different challenges asserted and assumption of achievement of gender-neutrality.

In a close look, the general analytic methods focus examining the connection between gender, rules, and practices. However, there are a few critics that refute this notion that feminist study establishes a broader look on gender in relation to social or legal grounds.[2] The feminist legal foundation has recognized the contemporary changes in both legal scholarships as well as feminism. It first started through legal realism, and then transited to law and societal analysis in addition to the crucial legal studies. Also, the focus on feminist legal theory on common law has also turned from the theoretical approach of general law found in books and has moved towards the real applicable law.[3]

Even though some theories argue that it’s hard to obtain such neutrality, a viewpoint on different aspects can help in realizing the need for neutrality. Some of these are the fact that all people need to treat all humans as humans. One of these comments emphasized on the need to study the oppression of animals in order to understand the different forms of oppression in human within a developing justice system.[4] The other aspect is equality. Many countries had for long despised the issue of equality. Taking US as an example, the femist had to go to court so that amendments could be made on the issue of equality in law. At other times, the US supreme court had to step harder on the cases that touched on gender inequalities either they were touching on men or women. In terms of equality, Chamallas, stated that equality under the rule of law demands treating like individuals alike and unlike individuals alike.[5] Certainly, theories have played a major role in developing the roles women in addition to promoting their status. Currently, both men and women can occupy different positions in the offices equally. Similar to the way Jonah was working with Ms. White.[6]

Feminist Legal Theory

The other concept of feminism legal theory is in the application of the law. The feminist legal theory has its influence even in law.  It starts from law schools to the application in court. For example, almost all books in family law must use feminist legal theory as a one of the guiding principle. In courts, both female and male lawyers articulate matters without a regard to their gender orientation. Also, cases involving a man and a woman are based on legal principles but not their sexual orientation.[7] For example, the concept of equality exists in different legislations such as property ownership, Contracts, Family acts, Marriage acts e.t.c.[8]

The issue of marriage, as well as social reproduction, has also been scrutinized by the feminists.  In the recent past, the law’s development of the privatization sphere as a self-governing field highly contributed to uphold and create gender discrimination.[9] For instance, under the scope of the common law, in marriage, the husband exercised his authority and protection towards his wife.[10] The woman could not contract, create a will, manage her earnings, or own real property. Currently, almost every country has regulation on matters of marriage. For example, the law has now accommodated de facto relationship as a form of union with legal entitlements. In fact, such a provision was unrealistic before the birth of feminism theories. Another contribution came from the Post-Civil Wars. They led to the emergence of legislation that recognized women’s earning acts and also gave them property rights. Currently, the law is recognizing even household labor more like work rather than an obligation.[11] 

Conclusion

The ninetieth and twentieth centauries have brought the rise of feminism theories, shifting the world to a direction that has led to liberation of women from the oppression of the unjust laws. However, despite the efforts of some of the feminist, the application of law of equality has applied effectively on some parts of the where most of the people are conservative. There is a greater need to increase awareness of equality so that all persons would be able to enjoy the all the rights equally.

Morgensen, Scott L., "Theorising Gender, Sexuality And Settler Colonialism: An Introduction" (2012) 2 Settler Colonial Studies https://dx.doi.org/10.1080/2201473X.2012.10648839

Catharine A.M., 1989. Toward a Feminist Theory of the State. Harvard University Press, Cambridge, MA

Williams, Verna L. and Kristin Kalsem, "Social Justice Feminism.” U of Cincinnati Public Law Research Paper No. 08-14; UCLA Women's Law Journal, Vol. 18, p. 131, 2010. Available at SSRN: https://ssrn.com/abstract=1112105

Deckha, Maneesha, "The Salience Of Species Difference For Feminist Theory" (2006) 17 Hastings Women’s Law Journal https://repository.uchastings.edu/hwlj/vol17/iss1/2

Chamallas, Martha, Introduction To Feminist Legal Theory (Aspen Publishers, 2nd ed, 2003)

Weyrauch, Walter O, Sanford N Katz and Frances E Olsen, Cases And Materials On Family Law (West Pub. Co., 2nd ed, 1994)

Cott, Nancy F, Public Vows (Harvard University Press, 1st ed, 2002)

Crawford, Bridget. J., “The Third Wave's Break from Feminism” (2009). International Law in Context. Available at SSRN: https://ssrn.com/abstract=1361347

Legislations

Family Law Act 1975

Cases

Jonah & White [2012] FamCAFC 200

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