¹ For a broad discussion of gendered assumptions in a range of areas of law, see R Graycar and J Morgan, The Hidden Gender of Law (1990). For some specific discussions of these areas, see Bender, L “An Overview of Feminist Tort Scholarship”(1993)Google Scholar 78 Cornell Law Review 575 and references cited there; J Grbich, “The Tax Unit Debate Revisited: Notes on the Critical Resources of a Feminist Revenue Law Scholarship”(1991) 4 Canadian Journal of Women and the Law 512; and K Lahey and S Salter, “Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism”(1985) 23 Osgoode Hall Law Journal 543. On property, see A Bottomley, “Self and Subjectivities: Languages of Claim in Property Law”in A Bottomley and J Conaghan (eds), Feminist Theory and Legal Strategy (1993); for contract, Frug, M J “Re-reading Contracts: A Feminist Analysis of a Contracts Casebook”(1985)Google Scholar 34 American University Law Review 1065; and on remedies, see C Boyle “Book Review”(1985) 63 Canadian Bar Review 427 reviewing R J Sharpe, Injunctions and Specific Performance (1983) and S M Waddams, The Law of Damages (1983).

² Of course, there is a serious issue as to what is “family law”, ie, how broadly or narrowly do we describe the reach of an area of doctrine dealing with the family. In Australia, there is a tendency to confine “family law”to marriage, divorce and related issues. This narrow approach is often justified by resort to constitutional limits on federal legislative power in Australia (see s 51(21) and (22)). Compare the discussion in R Graycar and J Morgan,above n 1, ch 6, especially at 121-126 and see also The Honourable B Wilson, “Women, the Family and the Constitutional Protection of Privacy”(1992) 17 Queens Law Journal 5.

³ The first of these was introduced in England in 1882; for an account of their gradual adoption by the Australian States, see E Campbell, “Appendix: The Legal Status of Women in Australia”in N MacKenzie, Women in Australia: A Report to the Social Science Research Council of Australia (1962). This also contains a comprehensive account of the then legal status of women in a number of areas of “public”and “private”life.

⁴ Blackstone, Commentaries, cited by L Holcombe, Wives and Property (1983) at 18.

⁵ See also the discussion by A Eppler, “Battered Women and the Equal Protection Clause: Will the Constitution Help them When the Police Won’t?”(1986) 95 Yale Law Journal 788 at 792. See, discussion by L Holcombe, above n 4, in particular, on the role of the courts of equity, ch 3.

⁶ L Holcombe, above n 4 at 18.

⁷ Compare De Facto Relationships Act 1984 (NSW). As Marcia Neave points out, even where, as in New South Wales, there is a relevant statutory scheme, constructive trust principles developed by the courts in this context are still important, as the statutes usually do not oust equitable principles: see MNeave, “The New Unconscionability Principle: Property Disputes Between De Facto Partners”(1991) 5 Australian Journal of Family Law 185 at 187.

⁸ A V Dicey, Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century (1920) at 383, cited by L Holcombe, above n 4 at 47.

⁹ See Gray car, R and Morgan, JGoogle Scholar above n 1 at 116. For a detailed discussion of a wide range of common law restrictions on married women’s legal capacity, and details of the modifications to some of these doctrines in each of the Australian jurisdictions, see H A Finlay and A Bissett-Johnson, Family Law in Australia (1972), ch 5, “The Legal Effect of Marriage”(discussing such matters as interspousal immunity; contractual capacity;competence and compellability of spouses to give evidence etc); E Campbell, above n 3.

¹⁰ For an Australian discussion, see Radi, H, “Whose Child?” in J Mackinolty and H Radi(eds), In Pursuit of Justice: Australian Women and the Law 1788-1979 (1979)Google Scholar.

¹¹ For New South Wales, see the Infants’ Custody and Settlements Act 1899.

¹² For some discussion of these assertions, and the role of fathers’ rights groups in Australia,see R Graycar, “Equal Rights versus Fathers’ Rights: The Child Custody Debate in Australia”in C Smart and S Sevenhuijsen (eds), Child Custody and the Politics of Gender(1989).

¹³ For an example (though it should be noted that this was a dissenting judgment), see the comments by Glass JA in Epperson v Dampney (1976) 10 ALR 227 at 241: “The bond between a child and a good mother … expresses itself in an unrelenting and self-sacrificing fondness which is greatly tothe child’s advantage. Fathers and stepmothers may seek to emulate it

¹⁴ Gronow v Gronow (1979) 144 CLR 513. This decision rests, at least in part, on a dubious factual basis, discussed below.

¹⁵ [1990] 1 SCR 852.

¹⁶ Ibid at 872.

¹⁷ Professor Christine Boyle, Walter S Owen Lecture, 10 September 1992, University of British Columbia, Vancouver.

¹⁸ Sometimes described as “domicil”.

¹⁹ See, for a general discussion of domicile, E I Sykes and M C Pryles, Conflict of Laws: Commentary and Materials (3rd ed 1988), ch 8.

²⁰ Formosa v Formosa [1962] 3 All ER 419 at 421-422.

²¹ For a discussion by the High Court of Australia, see RvL (1991) 174 CLR 379.

²² RvR [1992] 1 AC 599. It has been suggested that it is not as clear as has been assumed that the common law conferred such an immunity: see, for example, Brennan J’s discussion in R v L (1991) 174 CLR 379. However, the more widely held view is that it was necessary to clarify the situation by passing legislation which unequivocally stated that rape is rape, irrespective of the relationship between the perpetrator and his victim.

²³ And, as is now notorious, recently one Australian Supreme Court judge summed up to a jury in a marital rape case as follows: “There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree”: see R v Johns, summing up to jury by Bollen J, 24 August 1992, Case stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259. For a general account of the role of the public/private distinction in the subordination of women, see K O’Donovan, Sexual Divisions in Law (1985). For a discussion by the Full Family Court of the notion of privacy in the context of violence, see Schwarzkopf} (1992) FLC 92-303 at 79,291: “Family violence is not a private matter and must be treated seriously by the Courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court”.

²⁴ Dwyer v Kaljo (1992) 27 NSWLR 728 at 733 per Mahoney JA. Perhaps significantly, this was a dissenting opinion.

²⁵ It is important to stress that this discussion, in particular its examination of case law, is focused on the articulation of emerging themes and ideologies and does not purport to be empirically sound or even necessarily representative. Clearly, only a fraction of cases are litigated and fewer still reported and, although we know that many cases are settled “in the shadow of the law”, many others are resolved with no reference to the formal (or sometimes informal) justice system. For example, as Marlee Kline has pointed out, for Aboriginal women (her work involved Canadian First Nations people), their disputes are more likely to be with the state than with a former partner: see M Kline, “Race, Racism and Feminist Legal Theory”(1989) 12 Harvard Women’s Law Journal 115. For a discussion of research methodology issues in the context of child custody, see S B Boyd, “Investigating Gender Bias in Canadian Child Custody Law: Reflections on Questions and Methods”in J Brockman and D Chunn (eds), Investigating Gender Bias: Law, Courts and the Legal Profession (1993).

²⁶ This discussion is focused around reported case-law based on the current reliance on contribution and need. Of course, many commentators (most notably, in Australia, the Australian Institute of Family Studies and the Australian Law Reform Commission (ALRC)) have recommended changes in the way the law deals with the division of property after divorce: see P McDonald (ed), Settling Up (1987); K Funder, M Harrison and R Weston, Settling Down (1993); ALRC, Matrimonial Property (Report No 37, 1987). The Government has issued a response to the Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992), announcing its intention to implement a number of reforms to the Family Law Act in 1994: see Commonwealth Attorney-General’s Department, Directions for Amendment, Government Response to the Report by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (December 1993).

²⁷ Cf Fogarty J in Best v Best (1993) FLC 92-418 at 80,295.

²⁸ In 1992, there were 340,000 sole parent families of which 310,000 were headed by women. The number of sole parent families headed by women has risen by 30% since 1986 while the number of sole parent families headed by men has decreased by about 1%: see Australian Bureau of Statistics, Women in Australia, 1993, ABS Cat No 4113.0, Table 2.1 at 18. ABS data indicates that sole parent families are more likely than others to be poor and dependent on social security: 66% of sole mothers received below the annual average income for all women (which is, of course, well below the average income for men): Women in Australia at 174.

²⁹ See Attorney-General’s Department, The Treatment of Superannuation in Family Law (March 1992); ALRC, Matrimonial Property (1987) at 201-213 and 87-88; Joint Select Committee, above n 26 at 237-252.

³⁰ See Settling Up and Settling Down, above n 26.

³¹ This has also recently been formally acknowledged by the Supreme Court of Canada in two cases: Moge v Moge (Women’s Legal Education and Action Fund, intervener) [1992] 3 SCR 813 and Peter v Beblow (1993) 44 RFL (3d) 329: indeed, in Moge, the Court (at 873) stated that this was a matter of which judicial notice should be taken. The best known United States study is that by L Weitzman, The Divorce Revolution: The Unexpected Consequences for Women and Children (1985).

³² Women in Australia (1993), above n 28 at 169-208 (especially at 179).

³³ Amongst others, Margaret Thornton has written critically about the concept of merit: M Thornton, “Affirmative Action, Merit and the Liberal State”(1985) 2(2) Australian Journal of Law and Society 28. She suggests that merit is a concept which, while appearing to be gender neutral, can be used to reproduce existing inequalities. This is because it often leads to a perception that those considered most meritorious are those most like the people assessing merit. Thornton refers to this process as “homosocial reproduction or cloning”.

³⁴ This section provides for the alteration of property interests by reference to a number of factors including financial and non-financial contributions. It also requires the Family Court to take into account future needs, or the maintenance factors under s 75(2).

³⁵ In the Marriage ofFerraro (1992) 16 Fam LR 1 at 28.

³⁶ See, for example, Kaljo, Dwyer v (1992)Google Scholar 27 NSWLR 728 at 739 per Mahoney JA (dissenting). Interestingly, in Peter v Beblow (1993) 44 RFL (3d) 329, McLachlin J of the Supreme Court of Canada said that the suggestion that it is distasteful to put a price on domestic services is untenable and “pernicious”and “devalued the contribution which women tend to make to the family economy. It has contributed to the phenomenon of the feminisation of poverty which this court identified in Moge [1992] 3 SCR 813”(at 340).

³⁷ Perhaps the best known instance of this phenomenon is the comment by Wilson J in the High Court’s decision in Mallet v Mallet: “The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements”: (1984) 156 CLR 605 at 636. He also went on to comment: “Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party.”(Ibid).

³⁸ Examples here include Aldred (1988) FLC 91-933; Gamer (1988) FLC 91-932; and more recently Ferraro (1993) 16 Fam LR 1. Compare Horsley (1991) 103 FLR 186. Hilary Charlesworth has discussed some of these cases, in particular those where the husband’s “special skill”was a factor, in her “Domestic Contributions to Matrimonial Property”(1989) 3 Australian Journal of Family Law 147.

³⁹ In the Marriage of Ferraro (1992) 16 Fam LR 1.

⁴⁰ Ibid at 28.

⁴¹ Ibid at 47.

⁴² Ibid at 38.

⁴³ Ibid at 50.

⁴⁴ Ibid.

⁴⁵ However, the Full Court also increased the pool of property available for distribution and this led to an increase in the wife’s share in absolute terms.

⁴⁶ H Charlesworth, above n 38 at 155.

⁴⁷ As my other work on personal injury damages and family provision makes clear: see, eg“Women’s Work: Who Cares?”(1992) 14 Sydney Law Review 86; “Love’s Labour’s Cost: The High Court’s Decision in Van Gervan v Fenton”(1993) 1 Torts Law Journal 122; “Legal Categories and Women’s Work: Explorations for a Cross-Doctrinal Feminist Jurisprudence”(1994) 7 Canadian Journal of Women and the Law 34.

⁴⁸ For an analogous discussion in the context of personal injury damages, see R Graycar, “Women’s Work: Who Cares?”above n 47 at 88, footnote 16.

⁴⁹ (1979) 144 CLR513.

⁵⁰ (1979) 144 CLR 513 at 528 per Mason and Wilson JJ.

⁵¹ It is noteworthy that the Family Court has rejected an argument that a woman who has made contributions both through paid work and through her homemaking work should have her contribution valued at more than 50%: see Zdradkovic (1982) 8 Fam LR 97 at 103.

⁵² See, for example,Bittman, M Juggling Time: How Australian Families Use their Time (1991);Google Scholar Australian Bureau of Statistics, Women in Australia, above n 28 and How Australians Use Their Time, Cat No 4153.0 (February 1994) for clear empirical evidence that in Australian households, women still do the overwhelming majority of work in the home and this is not affected by their participation in paid work outside the home. See also J Baxter and D Gibson with M Lynch-Blosse, Double Take: The Links between Paid and Unpaid Work (1990).

⁵³ Compare the tendency to ignore this in the gender-neutral terminology “sole parent family”: see above n 28.

⁵⁴ This is a matter I am exploring at length in research currently being supported by the Australian Research Council: see also “The Gender of Judgments: An Introduction”forthcoming in M Thornton (ed), Fragile Frontiers: Feminist Debates around Public and Private (1995).

⁵⁵ M Eberts, “New Facts for Old: Observations on the Judicial Process”in R F Devlin (ed), Canadian Perspectives on Legal Theory (1991) at 475.

⁵⁶ Law Society of British Columbia Gender Bias Committee, Gender Equality in the Justice System (1992) at 5-33.

⁵⁷ See eg Park (1978) FLC 90-509; Mueller and Hegedues (1979) FLC 90-708; Mahon (1982) FLC 91-242; Burden v Nikou (1977) FLC 90-293. While the gendered “asymmetry”is most pronounced in custody cases it can also be found in property cases where the husband has the care of the children.

⁵⁸ In Mueller, the father cared for the two children, each of whom had some kind of physical and/or intellectual disability. While this is admittedly a considerable and exceptional burden for any carer, the judge emphasised at great length the efforts of the father, (despite the fact that he had also engaged paid assistance in the form of a live-in housekeeper) and also drew attention to the “inadequacy”of the wife’s performance of her role as a carer: see ibid, at (1979) FLC 90-708 at 78,769-78,772.

⁵⁹ For example, in a de facto relationship case the woman was a widow with brain damage needing day-to-day care; the man “managed her financial affairs”and did the cooking and housekeeping. The New South Wales Court of Appeal found that the man’s homemaker contributions had not beentaken into account by the trial judge as required by s 20 of the De Facto Relationships Act 1984 (NSW). The Court held that “the appellant was a loving, caring companion who took the respondent into his home, apparently assisted her to overcome her problems of alcoholism, cooked and cared for herand gave her many years of happy life”: Scott v Briggs (1991) 14 Fam LR 661 at 670.

⁶⁰ Horsley (1991) 103 FLR186 and Dench (1978) FLC 90-469 are exceptions.

⁶¹ One woman who wrote to the Australian Law Reform Commission as part of its reference on “Equality for Women Before the Law”graphically described this phenomenon: “[I]n the time of the ‘sensitive new age guy’ all manner of concessions must be made to a man who can adequately care for children. The identical skills in a woman are not considered to be worth any comment, as they are presumed to be the natural domain ofwomen.”(Confidential submission, on file with ALRC and author).

⁶² Mueller v Hegedues (1979) FLC 90-708 at 77, 770.

⁶³ (1979) FLC 90-708 at 77, 772.

⁶⁴ For an excellent Canadian discussion of this phenomenon, see S B Boyd, “Child Custody and Working Mothers”in K Mahoney and S Martin (eds), Equality and Judicial Neutrality(1987). See also S B Boyd, above n 25.

⁶⁵ See Swaney v. Ward (1988) FLC 91-928.

⁶⁶ This phenomenon is recognised by former Family Court lustice Peter Nygh in his discussion “Sexual Discrimination in the Family Court”(1985) 8 UNSWLJ 62 at 67-68.

⁶⁷ [1977] FLC 90-230.

⁶⁸ [1977] FLC 90-230 at 76,221.

⁶⁹ Bur chard v Garay 229 Cal Rptr 800 (1986). A third consideration was the “friendly parent rule”, ie, that the father would permit ready access, while the mother was less willing to do so.

⁷⁰ Burchard v Garay 229 Cal Rptr 800 (1986) at 809-810. The court was here quoting from N Polikoff, “Why Are Mothers Losing?: A Brief Analysis of Criteria Used in Child Custody Determinations”(1982) 7 Women’s Rights Law Reporter 235 at 241. (All original references have been omitted from this extract from the judgment.)

⁷¹ For further discussions, see R Gray car, above n 12; and R Gray car and J Morgan, above n 1, ch 10.

⁷² For some discussion of the primary caregiver model, see S Boyd, “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child Custody Law”in C Smart and S Sevenhuijsen (eds), above n 12; S Boyd, “Potentialities and Perils of the Primary Caregiver Presumption”(1990) 7 Canadian Family Law Quarterly 1; L Sack, “Women and.

⁷³ See, eg, submission of the National Committee on Violence Against Women (NCVAW) to Joint Select Committee, above n 26 at 50; Law Society of British Columbia, Gender Equality in the Justice System (1992) at 5-47.

⁷⁴ See the discussion of this by, amongst others, the NCVAW in its National Strategy on Violence Against Women (1992).

⁷⁵ These courts exercise jurisdiction over restraining and protection orders made under various State and Territory domestic violence laws: see Family Law Act s 114AB and Regulation 19 for a list of those prescribed.

⁷⁶ J Behrens, “Domestic Violence and Property Adjustment: A Critique of ‘No Fault’ Discourse”(1993) 7 Australian Journal of Family Law 9 at 13.

⁷⁷ For example, Fisher (1990) FLC 92-127; Sheedy (1979) FLC 90-710; Hack (1980) FLC 90-886.

⁷⁸ Fisher (1990) FLC 92-127 at 77, 847. Of course this distinction is a difficult one to apply: many women who are the targets of violence by their spouses suffer consequences much less obvious than would lead a court to find a direct economic consequence. For some insightful discussions of the harms suffered by women who are the targets of violence, see C Littleton, “Women’s Experience and the Problem of Transition: Perspectives on Male Battering of Women”[1989] University of Chicago Legal Forum 23; M Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation”(1991) 90 Michigan Law Review 1.

⁷⁹ J Behrens, above n 76 at 9.

⁸⁰ Ibid at 16.

⁸¹ Ibid at 19.

⁸² Here, it might be relevant, for example, to draw a clear distinction between a loss of future earning capacity which flows from the violence in the marriage, and a similar loss caused by a car accident.

⁸³ Ibid. Examples of such arguments are elaborated in her article at 20-25. These include: economic deprivation is often one of the consequences of violence and giving the woman, as the target of this violence, a greater share of matrimonial property can help redress the balance by enabling her, for example, to establish her life elsewhere (the promotion of future security); the need for compensation and the recognition that family law (as opposed to tort law or criminal injuries compensation) is an appropriate arena in which to pursue it. There are a number of rationales given for this view: battered women rarely seek compensation for their injuries and, if there is already a dispute about property, the additional costs involved in pursuing compensation would be unlikely to outweigh the possible benefits of receiving compensation; the injury for which compensation would be sought arises from the marriage the financial consequences of which are before the court. Finally, Behrens argues that “[a] decision to make the very cause of this power imbalance [the violent relationship] a factor in the decision making process would go a long way towards increasing the bargaining power of battered women in general …”(at 22). Emphasis in original.

⁸⁴ Ibid at 24.

⁸⁵ Ibid.

⁸⁶ See Family Law Act 1975, s 64(l)(a) for the welfare principle.

⁸⁷ See NCVAW above n 73 at 18-19, and P Parkinson, “Children Who Witness Domestic Violence”(Febr uary 1994, unpublished conference paper).

⁸⁸ (1979) 12 ALR 699.

⁸⁹ In the Marriage of Hack and Hack (1980) FLC 90-886 at 75,593.

⁹⁰ Heidi (1976) FLC 90-077. “I should emphasise that there is no suggestion that Mr Heidt has ever treated his children with the violence with which he has treated his wife … [I]n assessing his potential as a custodial parent I have largely disregarded his behaviour as a husband”: at 75,362. For a discussion, see J Behrens, above n 76 at 27, footnote 59. This issue is also explored by S Berns, “Living Under the Shadow of Rousseau: The Role of Gender Ideologies in Custody and Access Decisions”(1991) 10 U Tas L Rev 233. See also In the Marriage of Chandler and Chandler (1981) FLC 91-008.

⁹¹ (1976) FLC 90-077 at 75,363.

⁹² ALRC, Equality Before the Law (Discussion Paper No 54, 1993); Equality Before the Law: Women’s Access to the Legal System (Report No 67 (interim), 1994).

⁹³ The submission referred to in n 98 below, is one of a number of examples of these.

⁹⁴ ALRC, Equality Before the Law (Discussion Paper No 54,1993).

⁹⁵ A full list of those received is contained in the interim report, Equality Before the Law: Women’s Access to the Legal System (Report No 67 (interim), 1994).

⁹⁶ Some women referred to Family Law Act s 121 (the confidentiality provision) and pointed out that they had been advised not to talk about their cases.

⁹⁷ Reasons for judgment, at 2, included in confidential submission (on file with ALRC and author).

⁹⁸ See confidential submission (on file with ALRC and author). This of course raises interesting evidentiary questions about how treating a case in its full historical context might be facilitated given current rules of evidence and procedure.

⁹⁹ Confidential submission, addendum (on file with ALRC and author).

¹⁰⁰ See confidential submission (on file with ALRC and author).

¹⁰¹ ALRC, above n 94 at para 8.14.

¹⁰² Confidential submission (on file with ALRC and author). Emphasis in original.

¹⁰³ Ibid.

¹⁰⁴ Ibid. Emphasis in original.

¹⁰⁵ Illawarra Legal Centre, A Human Right to Justice: Experiences of Women and the Law in the Illawarra Region. Submission prepared for the Australian Law Reform Commission by Judy Stubbs, (No 284) (extracted in Appendix 2 of ALRC, Equality Before the Law: Women’s Access to the Legal System, Report No 67 (interim), 1994).

¹⁰⁶ Submission No 284 at 16.

¹⁰⁷ An American judge, R Neely has documented the extent to which property has so frequently been used as a bargaining tool by men who threaten custody disputes against women: see R Neely, above n 72.

¹⁰⁸ Submission No 142 at 10.

¹⁰⁹ Confidential submission (on file with ALRC and author).

¹¹⁰ See, eg, Fisher (1990) FLC 92-127; Barkley (1977) FLC 90-216.

¹¹¹ Behrens explains why violence against women is quite distinguishable from other forms of behaviour that might be called “fault”: above n 76 at 23-24.

¹¹² Submission No 96. Section 114AA is the section dealing with enforcement of the provisions on injunctions.

¹¹³ Interestingly, the woman who wrote of her custody case and her concern about the use of “status quo”referred to this policy which she had heard the Chief Justice discuss in the media: confidential submission, above n 102.

¹¹⁴ See Heidt, discussed above at n 90. The NCVAW pointed out in its submission to the Joint Select Committee, above n 26 that there is no specific reference to “violence”in the Family Law Act: see NCVAW submission, Part 1 at 12.

¹¹⁵ See above at 281.

¹¹⁶ F Steel and K Gilson, “Equality Issues in Family Law: A Discussion Paper”in K Busby, L Fainstein and H Penner (eds), Equality Issues in Family Law: Considerations for Test Case Litigation (1990) at 24-25.

¹¹⁷ In a discussion of the two recent Canadian cases, Moge and Peter, Susan Boyd reminds us that family law is a limited field in which to hope to address (and change) women’s relegation to poverty. For one thing, many poor women are in “intact”two parent households living in poverty: reforms to family law will not affect them. Others are sole parents through widowhood or choosing to bear a child alone. And, for many divorced women or unmarried separated cohabitants, there is not enough property or money generally to ensure any meaningful redistribution from men to women: see S B Boyd, “(Re)Placing the State: Family, Law and Oppression”(1994) 9 Canadian Journal of Law and Society 39 at 67-69. Ultimately, attention needs to be focused on the labour market and the welfare system, and the interrelationship of the three forms of support for women: paid work, dependence on men and dependence on the state: see T S Dahl, ‘Women’s Rights to Money”(1984) 12 International Journal of the Sociology of Law 137 and see more generally, R Graycar and J Morgan, above n 1, Part 2.

¹¹⁸ J Beggs and B Chapman, “The Forgone Earnings from Child-Rearing in Australia”, ANU Centre for Economic Policy Research, Discussion Paper No 190, commissioned for the AIFS, June 1988, at 40-41. Further, this figure assumes there is no capacity to receive interest on the sum. If there is this capacity the figure jumps dramatically. It also rises not only with educational attainment, but with an increase in the number of children a woman has. For an analysis of the manner in which the opportunity costs of women’s withdrawal from the workforce may be calculated, see K Funder, “Australia: A Proposal for Reform”in L J Weitzman and M MacLean (eds), Economic Consequences of Divorce: The International Perspective (1992).

¹¹⁹ See Settling Up and Settling Down, above n 26.

¹²⁰ Moge v Moge (Women’s Legal Education and Action Fund, intervener) [1992] 3 SCR 813.

¹²¹ Ibid at 861-862.

¹²² Ibid at 873. See also the Honourable C L’Heureux-Dube, “Recent Developments in Family Law”(1993) 6 Canadian Journal of Women and the Law 269.

¹²³ Peter v Beblow (1993) 44 RFL (3d) 329 at 341 per McLachlin J.

¹²⁴ See, for a discussion of the task forces’ approach to violence, K Czapanskiy, “Domestic Violence, the Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts”(1993) 27 Family Law Quarterly 247. J Resnik, “Ambivalence: The Resiliency of Legal Culture in the United States”(1993) 45 Stanford Law Review 1525 contains a complete list of the United States state task force reports on gender bias in the legal system in an appendix and discusses the report of the Federal 9th circuit task force.

¹²⁵ Reviewing L Weitzman, The Divorce Revolution (1985) in “Consider the Consequences”(1986) 84 Michigan Law Review 900.