Academic journal article University of Queensland Law Journal

Family Farming and Property Settlements under the Family Law Act 1975 and the Category of 'Special Contributions'

Academic journal article University of Queensland Law Journal

Family Farming and Property Settlements under the Family Law Act 1975 and the Category of 'Special Contributions'

Article excerpt


An analysis of the history of rural property settlements in Australia reveals that women have generally not received what may be considered a 'fair share' of rural property following divorce. The reasons for women's exclusion from a fair share in property settlements are not always apparent from legal judgments. Some critiques of family law have suggested that one reason is that their contributions to the farm have been seen as domestic rather than financial. (1)

While handing over the farm to a successor is a major transition in family farming, another 'transition' with 'family property' may be reflected in divorce cases. Women often lose out in such cases as they may have married into a farming family and stand to lose even more than their husbands, should the farm have to be sold or should they have to move off the farm. The situation may be exacerbated if the husband and wife worked on the farm for many years, while the title was still held in the name of the husband's parents. At the same time, women often fare badly from divorce, as they are sometimes left without adequate support. After many years on the farm, women are sometimes left standing with two 'empty hands', no place to live and little sympathy from the community as regards their needs. (2)

Divorce settlements may be problematic in family farming cases because family farming represents a way of life that is deeply rooted in a marital economy where land was generally transferred within a form of patriarchy. Stable family relations are an important organising principle of agricultural societies. Indeed, in rural areas marriage is considered essential to what is regarded as 'normal'. (3)

Patriarchal structures and relations have not been eradicated in Australian rural society. (4) Women are implicated in the reproduction of those structures by contributing their off-farm income, thus enabling husbands to continue farming when the enterprise may be financially unsustainable. (5)

Within this form of landholding, women have been required to conform to rural norms. The usual forms of inheritance and property settlements may be challenged when male farmers marry women from city backgrounds who do not accept this way of life. Stability may be threatened should a woman rebel against the self-sacrifice that is expected from her or, alternatively, she may be perceived as deviating from whatever 'the family farm' requires. In their study of farming families in Wales, Price and Evans identified an emerging discourse of women as 'gold diggers' who come in from outside agriculture, marry a farmer, and then divorce him and take half the value of the farm with them, thus endangering its survival. The same applies to Australia. (6)

Daughters-in-law are, thus, sometimes seen as a potential threat to the future of the farm, and one defensive strategy is for the parents to delay handing over the property to the son, in order to decrease the daughter-in-law's potential claim on the farm should the marriage fail. (7) According to Price and Evans, women are 'being reimagined as a major new threat to the whole way of life' of family farming and its patriarchal ideology and power relations. (8)

However, feminist scholars have recently developed a more nuanced reading of this account. They have shown that women have resisted such stereotypes in some cases, and have created alternative discourses. (9) This crossing of gender boundaries illustrates that there is no 'homogenous femininity', as gender identities are not singular but multiple and varied. (10) For instance, many women help the family business by developing careers outside agriculture, enabling them to forge new identities and social connections. This employment may stem or weaken the flow of family income away from farm development towards consumption and, so, ultimately negate the otherwise positive impact of this 'outside' work on the farm business. …

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