英文重组家庭针对关系解体的建设性信任

Reconstructing Family: Constructive Trust at Relational Dissolution Laura Weinrib∗ [D]ivorce law seems in danger of forgetting both the rhetoric and the remedies for addressing good and bad marital conduct and abuses of trust in intimate relationships.1 —Barbara Bennett Woodhouse Introduction: Deconstructive Trust Intimate relationships are, ªrst and foremost, relationships of trust. Family building demands the surrender of individual autonomy in favor of mutual reliance and care. It may nevertheless be unsurprising, in a so- ciety that celebrates self-interest and downplays community accountabil- ity, that family law reform efforts in recent years have largely neglected the emotional consequences of long-term cohabitation for the individuals involved. With all the talk of valuing women’s housework, moving be- yond the patriarchal institution of marriage, and recognizing the legiti- macy of privately ordered lesbian and gay partnerships, the human ele- ments of family are often left by the wayside. Given the dominant conception of family as an amalgamation of distinct individual interests, contract law has been the primary vehicle of restructuring the legal relationship between intimate partners.2 Contract is well suited to protecting partners’ autonomy, and its emphasis on vol- untary assumption of responsibilities has facilitated legal regulation of those families that fall outside the traditional boundaries of heterosexual marriages. The embrace of contract represents an important concession: ∗ B.A., Harvard College, 2000; M.A., Harvard University, 2000; J.D. Candidate, Har- vard Law School, 2003. Many thanks to Professor Elizabeth Bartholet for her thoughtful comments and advice over several drafts of this Article. I would also like to thank the edi- tors of the Harvard Civil Rights-Civil Liberties Law Review, especially Matt Heckman, Jordan Goldstein, Joi Chaney, Jiyoun Chung, Lorielle Edwards, Lindsay Harrison, and Randall Jackson. 1 Barbara Bennett Woodhouse, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 Geo. L.J. 2525, 2527 (1994). 2 The perceived transition of marriage from status to contract was part of a general so- cietal shift noted by Sir Henry Maine in the mid-nineteenth century: “[W]e may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Henry Maine, Ancient Law 165 (Raymond Firth ed., Beacon Press 1963) (1861) (emphasis added). 208 Harvard Civil Rights-Civil Liberties Law Review [Vol. 37 traditional family law cannot accommodate non-normative relationships, both because state legislatures have been slow to expand statutory deªni- tions of family and because family law is doctrinally wedded to its patri- archal origins.3 On the whole, however, contract is poorly equipped to structure re- lationships between intimate partners. The contractual model presumes parties with equal bargaining power, dealing at arm’s length.4 In a rela- tionship of interdependence, built on divergent duties and earning power, it is doubtful that the dependent party has bargained for any legally cog- nizable beneªt. Moreover, focusing on the intent of the parties effaces the human backdrop to contractual agreements. Unequal bargaining power in the family setting arises not only from disparate education and earning power, but also from disparate emotional involvement. To suppose that a mother faced with the prospect of losing her children or her means of sustenance can contract freely is to discredit the most fundamental of human bonds and to recognize the full extent of modernity’s power to alienate, sever, and exclude. Contract has become the dominant mode of rationalizing inequality. People are simply free, the argument goes, to make bad choices. Many feminists are concerned that the rejection of contract in the marital context would represent a return to the status-based notion of marriage, pursuant to which the husband provided for his wife’s needs in exchange for love, support, and housework.5 Contract law, they urge, en- visions husband and wife as equal autonomous partners who can regulate their entitlements from marriage.6 More radically, some celebrate con- tract as a means of eradicating marriage altogether; individuals who wish to share rights and responsibilities may enter into an agreement to do so.7 Proponents of contract claim that public law regimes rely on the coercive power of the state to impose normative values of sharing and nurturing on the family; only by recognizing the family as comprised by individu- als can pure privacy and autonomy be recognized.8 In response, I would 3 Martha M. Ertman notes, “In its various forms, the naturalized model of intimate afªliations contributes to race, sex, gender, sexual orientation, and class hierarchies. Due to these hierarchies, those deemed naturally inferior are economically and socially margi- nalized within intimate relationships.” Martha M. Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, 36 Harv. C.R.-C.L. L. Rev. 79, 80–81 (2001). Ertman lauds the privatization of family law for its departure from these marginalizing categories and offers business models as a means of structuring intimate relationships. 4 For a feminist discussion of how “inequality of bargaining power can subvert the bargaining process,” see Debora L. Threedy, Feminists and Contract Doctrine, 32 Ind. L. Rev. 1247, 1264 (1999). 5 See discussion infra Part I.A. 6 See, e.g., Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 Va. L. Rev. 1225, 1231 (1998). 7 On the tensions between privatization and progressive politics in the context of gay and lesbian relational contracting, see Nancy Ehrenreich, A Trend? The Progressive Poten- tial in Privatization, 73 Denv. U. L. Rev. 1235, 1242–43 (1996). 8 See Elizabeth S. Anderson, Women and Contracts: No New Deal, 88 Mich. L. Rev. 2002] Reconstructing Family 209 argue that given the reluctance of this country’s governments to exercise state responsibility for the needy, it is in the public interest to encourage small communities, whether structured as “couples” or otherwise, to as- sume responsibility for the nurturing and sustenance of children and of the economically or physically disadvantaged. Although there is near universal approval for the legal attentiveness to the “best interests” of children,9 there is a staggering reluctance to al- low a determination of the most equitable and beneªcial arrangement with respect to two adults. In the end, feminists must accept that pater- nalism10 comes in many forms, and we cannot fool ourselves into “freely” accepting oppression by reasoning that to do otherwise—to allow the state to protect the socially underprivileged party—would be to relin- quish free will. Abandoning contract entails relinquishing individual rights in favor of shared family responsibilities and community trust. The contractualization of family law has led to the sterilization of the family. As the legal mode of conceptualizing marriage (d)evolves, so too does its language: “Vocabulary changes from words of intimacy to the language of commerce (for example, proªt and investment) and self- interest. Spouses become parties, participation becomes contribution, and divorce becomes dissolution.”11 It is appropriate, then, that one of the most powerful tools for reconceptualizing the increasingly impassive le- gal notion of the family in human terms bears the name “constructive trust.” The potential for rhetorical playfulness is limitless: constructive trust is constructive in the lay-sense of productive, helpful, or beneªcial to constructing meaningful relationships; and yet trust, in the “partner- ships” of the day, has become constructive in the legal sense of con- structed, fraudulent, artiªcial—in short, ªctitious. And so we are left simply with trust as a construct, a working model of human interaction, that fundamental element of intimacy that we sacriªce to expediency and to which we all aspire. In general terms, constructive trust is an equitable remedy imposed on a party who has wrongfully obtained the property of another.12 The court redistributes the property in order to mitigate unjust enrichment.13 1792, 1806 n.33 (1990). 9 The “best interests of the child” standard is widely employed in adoption, custody, and guardianship cases. See 3 Fam. L. & Prac. (MB) § 32.01(1)(b), at 32-15 (Oct. 2000) (“The universal standard used to guide judges is ‘the best interests of the child.’”). 10 Perhaps the surrender of contractual autonomy called for in abandoning the con- tractual model would better be termed maternalism—after all, it is the mother, not the father, who is so often penalized by her commitment to interpersonal relationships over self. 11 Sanford N. Katz, Marriage As Partnership, 73 Notre Dame L. Rev. 1251, 1257 (1998). 12 5 Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts 304 (4th ed. 1989) (“A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be un- justly enriched if he were permitted to retain it.”). 13 Id. 210 Harvard Civil Rights-Civil Liberties Law Review [Vol. 37 Constructive trust was ªrst employed as a family law remedy in the 1970s, in the context of non-marital relationships.14 At that time, judges hoping to achieve a just distribution of non-marital shared property through contract law faced two substantial obstacles. The ªrst was a for- malistic hesitance to recognize the legitimacy of contracts pertaining to non-marital intimate relationships, which purportedly rested upon “mere- tricious”15 consideration.16 The second, of a far more substantive nature, was the inadequacy of contract law to accommodate individuals who were subject to manipulation by their partners.17 The ramiªcations of the unequal bargaining power between rela- tional partners are twofold. First, contracts between parties of disparate earning potential are likely to be substantively unfair: the contractual framework beneªts the party who is less willing to “trust”—the party who is economically suspicious and already anticipates the breakdown of the relationship, often the partner who is in the superior bargaining posi- tion. Second, contracts rarely protect the weaker party. The reality is that most individuals do not enter into explicit contractual agreements before engaging in intimate relationships.18 Until constructive trust arrived on the scene, there were virtually no equitable or family law remedies ac- cessible to non-marital couples at dissolution, and there was therefore little incentive for the wealthier party—usually the more sophisticated party and the only one likely to seek legal protections—to draft a con- tract in the ªrst place. Given the historical complications surrounding the application of contract law to non-marital relationships, equitable reme- dies were the only available option. The equitable remedy of constructive trust may have developed out of practical necessity, but its implications for judicial understanding of 14 See discussion infra Part II.C. 15 Early non-marital contracts were often invalidated on the basis that they provided ªnancial compensation for sexual services and were therefore akin to prostitution. The ironic similarity of such contracts to the institution of marriage (the “marriage contract”) largely escaped critical notice. See 6 Fam. L. & Prac. (MB) § 65.02, at 65–66, 65–67 (Apr. 1994). 16 See discussion infra Part I.A. 17 See discussion infra Part II.C. 18 Because most partners rely on vague promises to care for each other, many courts have sought remedies not based on explicit contracting. See generally Craig A. Bowman & Blake M. Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 Colum. L. Rev. 1164, 1171 (1992). Bowman and Cornish note that the infrequency of express non-marital contracts may be due in part to the broad misconception that common-law marriage is valid in most states. Id. at 1171 n.35. See also Kozlowski v. Kozlowski, 403 A.2d 902, 906 (N.J. 1979) (“Parties entering this type of relationship usually do not record their understanding in speciªc legalese. Rather . . . the terms of their agreement are to be found in their respective versions of the agreement, and their acts and conduct in the light of the subject matter and the surrounding circum- stances.”); Hewitt v. Hewitt, 394 N.E.2d 1204, 1207 (Ill. 1979) (“[I]t is unlikely that most couples who live together will enter into express agreements regulating their property rights.”). Moreover, most people are unaware that marital legal protections are unavailable to unmarried partners. See Twila L. Perry, Dissolution Planning in Family Law: A Critique of Current Analyses and a Look Toward the Future, 24 Fam. L.Q. 77, 77 n.1 (1990). 2002] Reconstructing Family 211 the family were pervasive. Constructive trust emerged as an alternative to the rigid, privacy- and autonomy-based contractual model. The doctrine of constructive trust allowed courts to develop an inclusive notion of family, based on the rights and responsibilities that the parties to an inti- mate relationship exercise with respect to one another.19 For the ªrst time, courts recognized the extent to which the notion of contracting for fa- milial rights and responsibilities is a legal ªction. Rather than demanding that the parties explicitly manifest their contractual intentions, they began to impute to intimate partners what amounts to a contractual duty of good faith and fair dealing akin to that of a ªduciary relationship.20 This pre- sumption of fair dealing is the basis for constructive trust. This Article is divided into two principal Parts. In the ªrst, I offer a critique of the increasingly contractual nature of family law. Because courts have only recently begun to adjudicate the dissolution of non- marital relationships, my historical analysis focuses primarily on divorce cases. Substantial attention is devoted to sex-based power disparities in- applicable to same-sex marriages, a growing contingent of those relation- ships traditionally classiªed as “cohabitation.” However, the harmful ef- fects of the contractualization of family law have by no means been lim- ited to dissolution of adult relationships: they pervade decisions regard- ing inheritance, adoption, child custody, disability, medical decision- making, and even some tort claims. I have done my best to touch on these categories where relevant, within the limitations of this Article, but I be- lieve that the principles established in the context of relational dissolu- tion carry over into every aspect of family formation and interrelation. In the second Part, I turn to the doctrine of constructive trust and its poten- tial implications for the way we understand relational dissolution. I begin by reviewing the history of constructive trust in the family law arena. I then outline my proposal for the application of constructive trust to all intimate relationships. Finally, I explore the meaning of damages and unjust enrichment in property distribution at dissolution. In the conclu- sion, I challenge the contractual notion that public ordering of the family impedes identity formation and decisional autonomy. I. Breach of Contract, Breach of Trust Before turning to a more detailed analysis of constructive trust and its applicability to family law, it will be useful to outline the theoretical and political underpinnings of the contractual model of marriage and to highlight the shortcomings of contract in the family law setting. This Part therefore opens with a brief historical account of the contractualization of family law. It then turns in greater detail to the primary models of re- 19 See discussion infra Part II.C. 20 See discussion infra Part II.B. 212 Harvard Civil Rights-Civil Liberties Law Review [Vol. 37 lational contracting, including pre- and post-marital contracts as well as settlement agreements, and exposes the inadequacy of contract law at the dissolution of same-sex and other non-marital partnerships. A. The Marriage Contract The history of marriage and marital dissolution has often been de- scribed as a transition from status to contract.21 The increasing promi- nence of contract doctrine in the context of family disputes had become apparent by the mid-nineteenth century.22 In an 1851 opinion, Justice Semmes wrote for the Supreme Court of Florida: “I know of no reason why the word contract, as used in the [C]onstitution, should be restricted to those of pecuniary nature, and not embrace that of marriage, involving as it does, considerations of the most interesting character and vital im- portance to society, to government, and the contracting parties.”23 The transformation, however, was a gradual one. Although philosophers and legal scholars had long discussed marriage, like government, in contrac- tual terms, such references were predominantly descriptive. The nine- teenth-century legal conception of marriage is typiªed by the 1887 deci- sion of the United States Supreme Court in Maynard v. Hill,24 in which marriage was envisioned as an “institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”25 Marriage was “something more than a mere contract,”26 and it was far removed from a notion of private bargaining by autono- mous individuals. In fact, the effect of marriage was precisely the oppo- site of that of a contractual bargain. It effaced identity and selfhood in favor of a merged spousal unit (with all of the attributes, including name and domicile,27 of the husband), subject to public regulation and manipulation. The courts’ refusal to enforce even written contracts between spouses stemmed from reluctance to intrude into marital privacy28 and 21 See supra note 2 and accompanying text. 22 On the transition from “patriarchalism” to “contractualism” in the nineteenth cen- tury, see Michael Grossberg, Governing the Hearth 19 (1985). 23 Ponder v. Grahams, 4 Fla. 23, 45 (1851). 24 125 U.S. 190 (1887). 25 Id. at 211. 26 Id. at 210–11. 27 The common law attribution of the husband’s domicile to the wife was codiªed in the Restatement of Conºict of Laws §§ 26, 27, 30, 34, 40 (1934). The rule changed in most states over the course of the 1970s and 1980s, and the Restatement was revised in 1986 to allow married women to retain their domiciles. Restatement (Second) of Conºict of Laws § 21 (1986). 28 The common law doctrine of nonintervention dictates that courts rarely adjudicate marital conºicts. For a critical perspective on judicial nonintervention, see Nadine Taub & Elizabeth M. Schneider, Perspectives on Women’s Subordination and the Role of Law, in The Politics of Law: A Progressive Critique 117, 121–22 (David Kairys ed., 1982). Nevertheles