Some are more ‘equal’ than others: heteronormativity in the post-White era of financial remedies

Abstract

This paper, through conducting an analysis of the decisions of White, Miller/McFarlane and Radmacher, argues that the courts have adopted a somewhat erratic approach as to what amounts to a fair division of assets. However, in consistently presenting heterosexual marriage as entailing the performance of different (and sometimes hierarchical) roles by husbands and wives, the courts have been relying upon stereotypes and bolstering heteronormativity. This article proposes that civil partnership dissolution matters appear to present an opportunity to pose new challenges relating to the traditional gender binary. Yet, the first case of its kind, Lawrence v Gallagher, indicates that aspects of the pre-existing normative framework are already being applied to same sex relationships. The paper argues that the normative function of family law must be considered when judgments are made about asset division, and that being supportive of individuals' pursuit of their preferred choices may ultimately prove more ‘egalitarian’.

Keywords::

• financial remedies
• civil partnership
• equality
• gay men and lesbians
• heteronormativity

Acknowledgements

Thanks to Rosie Harding, Sonia Harris-Short and the anonymous reviewer for their very helpful comments on earlier drafts of this article.