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33 Child & Fam. L. Q. 257 (2021)
Domestic Contributions as Unjust Enrichments: Commodifying Love?

handle is hein.journals/chilflq33 and id is 263 raw text is: 257 Domestic contributions as unjust enrichments: commodifying love? Sam Bannister* Keywords: Cohabitation - common intention constructive trust - unjust enrichment - domestic contributions - childcare - commodification This article argues for a rethinking of the dichotomy between financial contributions and non-financial or domestic contributions within the common intention constructive trust case law. Judicial notice of the concept of 'enrichment' when referring to domestic contributions, and therefore the imposition of market norms into discussions surrounding homemaking and caring, may provide evidence in disputes at the end of cohabiting relationships which allows domestic contributions to be compared against more conventional financial contributions. Situating domestic contributions within the current economic approach of the law would provide increased impetus for proper valuation of these contributions. Recent case law is examined in order to shed light on the current language and narratives used about domestic contributions. The economic theory of commodification and the doctrine of unjust enrichment are evaluated in order to conceive of domestic contributions as economically impactful work with a marketable exchange value. Introduction One of the most common and enduring criticisms made about the common intention constructive trust is its approach to domestic contributions, in particular the inability of such contributions to prove a common intention between the parties regarding property ownership. This is true at both the acquisition and quantification stage, and flows from the courts' continuing prioritisation of financial contributions. The common intention constructive trust is the primary doctrine used in England and Wales at the end of an unmarried cohabiting relationship and, where the defendant alone has legal title, may allow the claimant to obtain a beneficial interest in the former family home. This article uses the doctrine of unjust enrichment to provide a new conception of domestic contributions as economically impactful, and therefore challenges the traditional divide between financial and non-financial (domestic) contributions by commodifying (and therefore applying market norms to) behaviour within the home, using in particular the example of caring. 'Financial contributions' are defined here as direct payments made towards the acquisition of the property itself, usually to the purchase price or mortgage instalments. 'Domestic contribu- tions' are non-monetary contributions to family life (such as homemaking and childcare) and indirect monetary contributions (such as for household bills). Often indirect monetary contributions made by the claimant will allow the defendant in turn to pay the mortgage instalments. The most obvious example of domestic contribution is care, both of children and of partners. Caring continues to be devalued within the law and society more widely, and this is certainly true within the common intention constructive trust case law. Of all domestic * Postgraduate Researcher, Durham Law School, Durham University. I would like to thank Andy Hayward and the anonymous reviewers for their helpful comments on earlier drafts, and Rebecca Probert for her editorial work. Any errors remain my own.

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