2.1 The historical development of domesticity

In the UK, domesticity gained widespread influence during the late eighteenth and nineteenth centuries, particularly during the Victorian era (Folbre, Reference Folbre1991, p. 46). Women were considered unsuited for anything other than domestic work in the home, with their province being management of the household and child-rearing. In addition, the ideology imposed idealised standards of behaviour, with women expected to be ‘modest, chaste, pious, compassionate, and virtuous’ (Francus, Reference Francus2012, p. 2). The home came to represent these qualities. Ideals of womanhood were continuously reinforced through a variety of cultural representations, including art, literature and magazines (Boardman, Reference Boardman2000). They also appeared in liberal philosophical writings, including Jean-Jacques Rousseau's theory that women should ideally exhibit passivity and weakness (Rousseau, Reference Rousseau1979).

As an ideology, domesticity relied on gendered definitions of space, with the family home transformed from previously being a site of production into a centre for morality and virtue (Folbre, Reference Folbre1991, p. 464). The beginnings of domesticity also broadly coincided with the Industrial Revolution in the UK and the US, bringing about a transformation in working practices. Production became concentrated in a geographically separate public market-place, which was seen as the male domain (Fehlbaum, Reference Fehlbaum and Shehan2016). Women's work in the home was rendered unproductive and their role shifted from worker to passive dependant. Furthermore, homemaking and childcare came to assume a spiritual dimension, and female identity became spatially anchored in the home. The ideal Victorian woman depicted in art and literature was the ‘angel in the house’Footnote ¹: passive, nurturing and altruistic in her endeavour to create the ideal home for her husband and children (Gregson and Lowe, Reference Gregson and Lowe1995, p. 226).

Whereas much of the reinforcement of domesticity was cultural, the belief in men's and women's separate roles was also mirrored in legal discourse. Women's legal personhood, including the right to vote, was denied until the early part of the twentieth century (Richardson, Reference Richardson2004). Married women, more so than their single counterparts, were restricted from taking part in public or economic life, including owning property separately from their husbands. Blackstone famously remarked that, upon marriage, ‘the very being or legal existence of the woman is suspended … or at least it is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything’ (Blackstone, Reference Blackstone1765, p. 442, emphasis in original). In the 1914 case Bebb v. Law Society,Footnote ² the Court of Appeal infamously rejected the notion that women fell into the category of ‘persons’ who could qualify and practise as solicitors, motivated partly by the fact that, at the time, married women were unable to enter into certain binding contracts and would therefore be ‘unfitted either for entering into articles or for contracting with their clients’.Footnote ³

The early twentieth century saw the start of the removal of formal legal barriers preventing women entering the public sphere, including the passing of the Sex Disqualification (Removal) Act 1919, which provided that ‘[a] person shall not be disqualified by sex or marriage from the exercise of any public function’.Footnote ⁴ While domestic work (both paid and unpaid) continued to be seen as a female endeavour, the two world wars led to women entering the workforce in greater numbers than ever before, performing, out of necessity, work that had hitherto been viewed as male (Holloway, Reference Holloway2007, p. 8). However, by the 1950s, there had been a cultural revival of domesticity, with the image of the traditional housewife and mother being promoted heavily through women's magazines and advertising, reinforcing once more women's supposedly natural role within the home (Beaumont, Reference Beaumont2017). The traditional housewife took on a public role in the 1950s, being regarded as essential in efforts to rebuild the moral fibre of the country post war (Beaumont, Reference Beaumont2017, p. 147).

During feminism's second wave in the 1960s and 1970s, attention was turned to the plight of the ordinary housewife, whose socially designated role in the home rendered her economically dependent and unable to participate in the workplace (see Oakley, Reference Oakley1974). Large-scale feminist movements such as the Wages for Housework initiative (see Dalla Costa and James, Reference Dalla Costa and James1973; Federici, Reference Federici1975) argued for financial compensation for domestic labour and the right for women to work outside the home. The feminist fight was fought on the basis of non-discrimination, leading to ground-breaking legislation being passed in the 1970s to protect against discrimination on the grounds of sex, marital status or maternity in the form of the Sex Discrimination Act 1975 and the Equal Pay Act 1970. Formal legal barriers to women's liberation from the home had now been removed. In many ways, this seemed to be effective and the 1980s and beyond saw a significant increase in women's participation in the paid workforce.

Tracing domesticity's history is important in terms of understanding its continued influence today. The domesticity of the Victorian era and of the 1950s tends to be looked back upon as a backward time that has been left behind to make way for an enlightened and progressive future where women's concerns have ‘moved on’ from questions of distribution of domestic work. Indeed, there is relatively little modern feminist scholarship dealing specifically with the question of housework (as distinct from care) and the home as the locus for female oppression. There has also been a shift in the scale of study within feminist socio-legal scholarship. Valverde (Reference Valverde2015) argues that today's scholars are turning their focus away from the household, towards a more expansive perspective, seeing the status and distribution of socially reproductive work predominantly as a global issue, evidenced, for instance, in Hochschild's concept of ‘global care chains’ (Hochschild, Reference Hochschild, Hutton and Giddens2001). My position is that, while the global perspective is a vital one in terms of understanding the flows of power involved in socially reproductive labour, the household also remains relevant as a site of study. Increased female participation in the workplace has not solved past problems; it has merely masked them and rendered them more complex. For, despite the shift in women's working patterns, the gendered distribution of unpaid socially reproductive labour in the home has remained relatively intact, with women still performing the vast bulk of care and housework, especially daily repetitive tasks such as cooking, cleaning and laundry.Footnote ⁵

2.2 The utility and illusions of domesticity

Domesticity is more than a set of culturally and historically entrenched biases. Organising society into separate spheres and concealing the work that takes place behind the façade of the ideal home are of significant economic benefit both to men as a class and to the state. Men are relieved of the burden of managing the home or caring for children, leaving them relatively unencumbered to pursue economic endeavours in the public sphere (Himmelweit, Reference Himmelweit1995). The state draws considerable advantages from perpetuating domesticity's division between the public and private. By privatising and sentimentalising work that takes place in the home, such as child-rearing and caring for an increasingly elderly population, state responsibility for its provision is limited. Not only does domesticity ensure that domestic work remains largely unremunerated, but it also ensures a class of willing workers by teaching women from birth that their destiny lies in taking care of the home and family. Women are told that their status as a ‘good mother’ or ‘good wife’ depends on them performing unpaid work. The state therefore has a significant vested interest in sentimentalising domestic work, rendering it a natural part of womanhood rather than unpaid and uncounted labour that allows the remainder of society to function efficiently.

Domesticity, based on a notion of an ‘essence of femininity’ has always claimed to speak for all women (Davidoff and Hall, Reference Davidoff and Hall2013). In deconstructing it, it is therefore easy to focus only on how it adversely affects women as a class. However, this overlooks the more nuanced classed and racialised divisions that are perpetuated by the ideology – issues that are increasingly relevant within modern British society, where claims of equality of the sexes are frequently made based on women's presence in the workplace. Yet, it is clear that women's increased participation in paid work is not a result of men's assumption of domestic responsibilities. Instead, some women (predominantly White and middle-class) can gain status in the public realm, but this is often as the direct result of outsourcing domestic burdens to other women – something that poorer or more marginalised women are unable to do.

The role of outsourcing is important in terms of highlighting the illusory nature of domesticity. While the ideology imbues women's work in the home with a moral and emotional quality and strips it of any economic or productive value, it simultaneously recognises that certain tasks can be delegated to others in return for money and that women can maintain the performance of domesticity even if they do not carry out all the work themselves. This is possible because domesticity is ultimately about a ‘finished product’ (the ideal home and contented family), without acknowledgement of the labour involved in producing it. Roberts has argued that domestic work is grouped into categories of ‘spiritual’ and ‘menial’ work, which ‘enables many professional women to go to work without disturbing the sexual division of housework or relinquishing their role as spiritual housekeepers’ (Roberts, Reference Roberts1997, p. 57). Responsibility for the upbringing of children (but not necessarily performing all of the caregiving work) is given higher status and visibility than the day-to-day labour involved in keeping the house clean (Roberts, Reference Roberts1997). This illustrates that domesticity has always been a White, middle-class ideal, made possible for socially privileged women through the unacknowledged and hidden labour of more marginalised women. Even during the early days of the ideology, many women's lives bore no resemblance to the ideal (Francus, Reference Francus2012, p. 5). Only affluent women could fully embody and thus perpetuate domesticity. To do so, they employed women to work as domestic servants, whose labour behind the scenes carrying out manual, dirty and time-consuming tasks gave respite to the ‘lady of the house’ and allowed her to assume the role of the tranquil and contented housewife and mother. In the UK, these domestic servants came from the poor working classes and, in the US (where domesticity was similarly prevalent during the eighteenth and nineteenth centuries), they were often women of colour (Staples, Reference Staples2007; Holloway, Reference Holloway2007).

The racial and classed underbelly of domesticity is particularly relevant to a modern analysis of housework, as it sharply illustrates how women's relationship to housework has been rendered increasingly complex and concealed. Women's participation in the economic sphere is offered as proof of gender equality (see e.g. McRobbie, Reference McRobbie2007). Yet, the expectation for women to oversee the household has not disappeared. Instead, as has always been the case, domestic harmony is partly made possible by the invisible work of other women. As Gregson and Lowe's research found, women's increased numbers in the paid-labour market coincided with a revival of middle-class outsourcing of domestic work, such as employing nannies or cleaners, often from immigrant backgrounds (Gregson and Lowe, Reference Gregson and Lowe2005, p. 3). The concept of domestic service reveals a contradiction within the ideology, for it involves some women having to work and thus sacrifice their own domesticity. Yet, although they are engaged in paid work, working within someone else's home brings none of the status that work in the public sphere does (see e.g. Hondagneu-Sotelo, Reference Hondagneu-Sotelo2007).

Efforts to achieve equality have predominantly focused on opening the economic sphere to women. While this has had some positive effect in terms of reducing female dependence on men, it has not led to domestic work being shared equally between the sexes. Domesticity cannot simply be dismissed as belonging to an unenlightened past from which we have now moved on. Its essence remains ingrained in societal and legal consciousness. It is still thought so natural that it is almost incapable of being challenged. If anything, the removal of barriers between the spheres has led to the argument that women are choosing to do the lion's share of housework and care (see Fineman, Reference Fineman, Fineman and Grear2013, p. 19). In the next section, I argue that part of the reason that domesticity is so difficult to escape is that is repeatedly reiterated and reinforced through the spatiotemporal organisation of the home, which promotes gendered separation of household tasks and which imagines the home as an essentially feminine space. This ensures that domestic work, and particularly that which is performed by women, remains spatiotemporally hidden from view, allowing it to go unnoticed, unappreciated and unrewarded.

3.1 The home as a chronotope

Here, I conceptualise the home as a powerful combination of spatial and temporal features that upholds and reinforces domesticity. As it is imagined in culture, society, policy-making and law (as a place where the law does not generally intrude), the home serves as a physical boundary between the public and private spheres (Blomley, Reference Blomley2005, p. 281). It is considered quite literally ‘detached’ (Valverde, Reference Valverde2015, p. 19) from the public sphere, which serves as a symbol of the economic self-sufficiency of the family unit and marks the spatial limits to which the state can intrude into private life. Notably, those who fail to conform to the autonomous ideal of financial autonomy often find themselves occupying structures that are more scrutinised and less detached, such as purpose-built social housing, hostel accommodation or even public spaces such as streets or parks. Furthermore, and reflecting the ideology of domesticity and its gendered separate spheres, the home is predominantly imagined as a feminine space – a point of safety, intimacy and nurture, often used to contrast with the unsafe, cold and harsh public sphere of the street or the workplace. This depiction takes place through both language and visual spatial representation, seen in the way that ‘the imagery and vocabulary that feminize [the home] is subtly ubiquitous in the images of enclosure, protection, and warmth that connote both the womb and the vagina in a masculine imagination of enclosing, safety, security, and dreamy warmth’ (Price, Reference Price2002, p. 49).

Nonetheless, despite its status as a refuge from public scrutiny, the home is ‘redolent with social meaning’ (Madigan and Munro, Reference Madigan and Munro1991, p. 120). It is a symbol to the outside world, displaying social status and conformity (or lack of) with expectations around the organisation of private life. Significant social and cultural pressures exist to ensure that the home conforms to its imagined ideal, both internally and externally. The construction and geographical placing of the home involve powerful reinforcement of norms and ideologies. Although the home is idealised as a place of self-expression and a reflection of personal identity, much of this is predetermined for its occupiers based on what they are thought to desire. This is especially so in the UK, where spatial constraints mean that very few people design and construct their own homes according to personal specifications. Instead, builders and architects design structures according to ‘the successful identification of “what people want”’ (Chapman and Hockey, Reference Chapman, Hockey, Chapman and Hockey1999, p. 5). This inevtiably involves various value judgments and assumptions about who the imagined occupants will be and how they will organise their domestic life.

Geographical zoning of houses, including the division between residential and urban areas, reflects ideals of domesticity. The family home is depicted as a safe haven, usually some distance away from the potential dangers of the urban public sphere. The development of suburbs in nineteenth- and twentieth-century Britain helped to designate these as the ideal setting for middle-class life. The suburbs also reflected gendered assumptions about the organisation of family life, notably that women would stay at home to care for their children and required a safe and suitable space in which to do so (Day, Reference Day2000, p. 109). Residential settlements such as Garden Cities were promoted as ‘providing a healthy and morally superior environment for women and children, segregated from the overcrowding and corruption of the city’ (Madigan and Munro, Reference Madigan, Munro, Chapman and Hockey1999, p. 61) and embodying ‘individual domesticity and group monitored respectability’ (Thompson, Reference Thompson1982, p. 8).

The home's ideological force derives not merely from its spatial layout and geographical positioning, but also from the temporalities that constitute it. As Bakhtin said of chronotopical analysis, ‘time, as it were, thickens, takes on flesh, becomes artistically visible, likewise space becomes charged and responsive to the movement of time, plot and history’ (Bakhtin, Reference Bakhtin1981, p. 84). The ‘flesh’ to the spatially constituted ideal home comes from the equally idealised temporal framework of ‘the life course’ (Valverde, Reference Valverde2015, p. 20), which is expected to be played out in the home's space. The life course is a set of apparently defining ‘life events’ that an individual is expected to undertake, including childhood, leaving home, employment, partnering, marriage, child-rearing and retirement. This life course is ‘chrononormative’ (Freeman, Reference Freeman2011), operating to reinforce a cultural and societal ideal (White, middle-class and heterosexual). It does not merely set expectations for the various life events, but also imposes a vision of the ‘right’ time in life for these (Riach et al., Reference Riach, Rumens and Tyler2014). The life course operates in tandem with the home as a spatial location because the ideal home is always imagined with an ideal occupant in mind (Valverde, Reference Valverde2015, p. 20). The architect's assumptions about ‘what people want’ discussed above are invariably shaped by chrononormative assumptions of whom ‘people’ is considered to encompass.

4.1 A foot in each realm: navigating the boundaries between the private and public

This spatiotemporal ordering of housework as distinctly separate to, and incompatible with, paid work can cause difficulties for women in terms of traversing physical and metaphorical divides between the public and the private sphere. This is something that has arguably intensified in conjunction with women's increased presence in the paid workforce. Despite retaining primary responsibility for daily housework, the state now also expects women to be economically productive (McKie et al., Reference McKie, Gregory and Bowlby2002, p. 899). However, the fact that their work in the home lacks visibility means that tensions between the public and the private in women's lives is often overlooked or downplayed in public policy. As McKie et al. have argued, ‘social and employment policies appear to presume a seamless shift from home to work’ (McKie et al., Reference McKie, Gregory and Bowlby2002, p. 898). State policies fail to account for the difficulties that women experience in having to cross the spatial and temporal boundaries between home and the workplace and the expectations on them to be in two places at the same time.

The frequently fixed spatial and temporal nature of paid work requires women's obligations in the home to be moulded around the working day. Often this has the effect of restricting both the geographical zone and the hours that women can work, unless they can delegate their responsibilities to other women. Because paid work is predominantly measured in terms of adherence to clock-time and often requires the worker's physical presence in the workplace, obligations in the home are barriers to women conforming to employment expectations, because these assume an ease of transition between the public and private spatiotemporalities. Even in a new era of shifting forms of labour such as increased home-working and zero-hours contracts that potentially challenge the existence of a spatially separate workplace, these modern working patterns also create restrictions for women in their assumption that the typical worker is unburdened by domestic obligations. Remarking that modern-day working is increasingly built around an image of innovation and entrepreneurship, Amoore argues that ‘[i]f worker-entrepreneurs are to “embrace uncertainty” in their working lives, their working time becomes less predictable, their time for domestic and care work diminishes’ (Amoore, Reference Amoore2004, p.189). Even flexible and home-working practices have not shifted the fundamental assumption that work and home life belong in separate realms. Women are required to straddle the two, leaving them metaphorically standing with one foot in each sphere, each constantly threatening to spill over and disrupt the other (see McKie et al., Reference McKie, Gregory and Bowlby2002, p. 913). A semblance of balance between the two spheres may be achieved for the middle-class women who are able to purchase the labour of less-privileged women, but this provides only an illusory solution to the problem, as it is premised on the exploitation of working-class and immigrant women (see Anderson, Reference Anderson2000). It also places additional burdens in the form of physical stress and lack of leisure time on those women who are tasked with performing domesticity for others while simultaneously needing to look after their own family and home (Williams, Reference Williams2010).

The purpose of this section was to explore how domesticity is reproduced through the spatiotemporal ordering of the home, as well as through the gendered performance of domestic work. The chronotopical lens illuminates how the spaces and times of the home operate to render women's work largely invisible. By regarding domestic work in spatiotemporal terms, it has also been possible to see the distinction between men's and women's work, which upholds the ideology of domesticity and the belief that men and women have distinct roles and distinct areas of spatial belonging. It is this which forms the basis of my analysis in the final section, where I turn to the context of property rights in the home, exploring the ways in which the home and housework chronotope is visible in judicial deliberations over the value (or lack) of domestic contributions and the ways in which judges make distinctions about men's and women's work that betray a continuing adherence to the ideology of domesticity.

5.1 The legal context: constructive trust and proprietary estoppel

In the absence of specific legislative provision for unmarried cohabitants in English law, any disputes between them regarding the question of proprietary rights in the family home fall to be dealt with under ordinary property and trusts law, through the common-intention constructive trust or the doctrine of proprietary estoppel. A constructive trust can arise either where the couple jointly own their home or where legal title is held by just one of them. It requires evidence of a common intention that the parties intended to share the beneficial ownership of the home.Footnote ⁶ The position is relatively straightforward where legal title is jointly held (but where there is disagreement as to the size of the parties’ respective beneficial shares). Here, Stack v. Dowden Footnote ⁷ and the subsequent Jones v. Kernott Footnote ⁸ have established that there is a strong presumption that the parties also intended to hold the beneficial interest in equal shares. This presumption can be rebutted by evidence that the parties held a contrary intention but, as Stack itself confirmed, unequal financial contributions (such as where one party is the breadwinner and the other is the homemaker) do not by themselves suggest that unequal shares were necessarily intended.Footnote ⁹ While the performance of unpaid work by one party may assist the court in ascertaining intention, it is of greater relevance where legal title to the home is held by just one party.

In sole-ownership cases, domestic work has relevance in two situations. The first is where the parties have had express discussions regarding ownership of the home and the owner has made some form of representation that beneficial ownership will be shared.Footnote ¹⁰ In order for a constructive trust to be established, the claimant must also show that she has relied on these discussions to her detriment. Detriment can include the performance of unpaid work in the home, the important point being that it must be evidenced that, but for the discussions surrounding ownership, the work would not have been performed.Footnote ¹¹ The second scenario is where there is no evidence of express discussions but the parties have behaved in such a manner that the court can infer that they intended to share the beneficial ownership of the home from their conduct. In the highest authority on sole ownership, Lloyds Bank v. Rosset,Footnote ¹² domestic contributions were expressly discounted as by themselves providing evidence of an intention to share ownership, with only direct financial contributions to the deposit or mortgage being thought sufficient. However, since Rosset, there have been obiter suggestions that the test is no longer as strict and that the court must instead consider the whole course of the parties’ relationship when determining whether intention can be inferred.Footnote ¹³ Therefore, uncertainty remains (Sloan, Reference Sloan2015) but, if a more generous approach is correct, domestic work could be relevant in terms of showing evidence of a sharing intention.

The doctrine of proprietary estoppel has significant overlaps with the constructive trust. It permits the court to award a remedy where the defendant owner has made a representation to the claimant that the latter is to be given rights in respect of the home.Footnote ¹⁴ In contrast to the constructive trust, it does not require evidence that the defendant promised the claimant an immediate interest. Instead, the representation could conceivably relate to future rights, including a promise to make provision by way of a will to take effect on death.Footnote ¹⁵ As well as showing evidence that an assurance was made, the claimant must show that she relied on this to her detriment in some way. In estoppel cases, it is therefore at the point of proving detrimental reliance that domestic work performed in reliance on a promise of a proprietary interest has potential relevance.

5.2 Spatiotemporal influences in legal reasoning

The claim that the judicial treatment of domestic contributions is heavily gendered is not a novel one. For instance, Flynn and Lawson have remarked that female claimants usually have to show that their unpaid work was ‘extraordinary’ in a way that male claimants do not, betraying judicial attitudes that women are naturally suited to the domestic realm (Flynn and Lawson, Reference Flynn and Lawson1995, p. 117). Wong has also argued that the judiciary adheres to ‘a legal family ideology where domestic tasks are seen as a “labour of love” performed by women’ (Wong, Reference Wong2007, p. 274). However, the chronotopical lens offers an expansion and deepening of the existing feminist critique, illuminating not only the judiciary's gendered interpretations of domestic work, but also the way that the spatial and temporal ordering of this work comes to influence the way it is perceived and valued and how women are disadvantaged even if they perform typically ‘male’ work. I argue that women's work can only be considered extraordinary if it falls outside spatiotemporal expectations imposed by the ideology of domesticity. That is, it must not only transcend the boundaries of what is considered female work (i.e. ordinary housework), but, more importantly, it must be imagined as going beyond women's relational role under the ideology of domesticity, which is reinforced by the notion of the chrononormative life course. An analysis of the cases suggests that work that is spatiotemporally visible is more likely to be given legal visibility and value than that which is hidden, meaning that women who perform ‘men's work’ are more likely to be able to show an intention of ownership of the home. However, as I show, women's association with domesticity is so strong that, even where their work may be spatiotemporally ‘out of the ordinary’, this often proves insufficient to displace the presumption that they are motivated primarily by love and affection.

Within the case-law, there are clear distinctions made based on the nature of the work in question. Although she is writing from a US and Canadian perspective, Philipps's observation that unpaid work with an economic association, thus crossing the divide from the private to the public sphere, is more likely to justify a finding of proprietary rights than ordinary housework (Philipps, Reference Philipps2008, p. 82) is also evident in English case-law. The courts have readily recognised that unpaid work in a family business, such as a farm, can constitute detrimental reliance for the purposes of establishing a constructive trust or proprietary estoppel.Footnote ¹⁶ Additionally, it has been acknowledged that the performance of construction work can justify an inference that the parties intended to share the beneficial ownership of the home.Footnote ¹⁷ On the other hand, ordinary housework tends to be regarded as an incidental part of cohabitation or an expression of affection, and therefore is insufficient to justify an interest in the home. This was seen in Thomson v. Humphrey,Footnote ¹⁸ where the claimant sought to rely on regular housekeeping and cleaning. Warren J. explained that ‘there was nothing out of the ordinary in what she did and nothing that can lead, anyway, to the acquisition or ownership of a share in a property’.Footnote ¹⁹ This statement reinforces the expectation that housework – a traditionally female endeavour according to the ideology of domesticity – requires something ‘extra’ in order to justify a beneficial share in the home. The traditionally male domain of construction, on the other hand, does not appear to carry the same requirement of extraordinariness.

Classical theories of property recognise the notion of awarding property rights based on the performance of labour (Harris, Reference Harris1999). For instance, Locke's theory employed the concept of ‘labour-mixing’ on the basis that a person's physical labour is seen as becoming mixed with the land's physical structures, thereby justifying legal recognition (Locke, Reference Locke and Macpherson1689/1978, p. 18). However, the decision as to what type of labour justifies reward is inevitably tied to social conventions and beliefs as to what work is considered meritorious and valuable (Harris, Reference Harris1999, p. 431). In English property law, the determination of whose labour merits reward has always been gendered, racialised and classed, and based around a White and male model of ownership (see Keenan, Reference Keenan2017). It has been established that preservation and maintenance do not have a sufficiently direct connection to the property to warrant an inference that it was intended that the claimant should have a share.Footnote ²⁰ Conversely, construction work, which changes the geographical landscape, as well as providing ‘a rupture in the continuity of history’ (Young, Reference Young and Young2005, p. 27), appears to provide a more obvious link to ownership than mere preservation, even when the latter is performed over a number of years. Law's preference for work that makes a spatial change can be seen in Baroness Hale's comments in Stack, where she describes the situation ‘where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then’.Footnote ²¹ Housework, on the other hand, merely preserves what is already there. The distinction between the two is presented as logical and common-sense, yet it betrays a heavily gendered view of what constitutes work and what justifies ownership.

In order for domestic work to gain legal status, it must demonstrate that it breaks free of the material and metaphorical boundaries imposed by the ideology of domesticity. As discussed in the previous section, domesticity is reinforced through the home's spatiotemporal ordering, emphasising the point that

In Lloyds Bank v. Rosset, the claimant relied on domestic work in the form of painting and interior decoration of the home – work that could be said to fall under domesticity's expectations of women to ‘make the home’ (see Darke, Reference Darke, Gilroy and Woods1994; Madigan et al., Reference Madigan, Munro and Smith1990). Mrs Rosset's work was spatiotemporally located so as to reinforce its sense of belonging in the private realm, away from legal scrutiny. She occupied the home's interior, ideologically designated as the female domain. Additionally, her work was performed against the temporal backdrop of heterosexual marriage, with its expectations of permanence, of building a joint future, making the ideal home and conforming to the ideal life course. Mrs Rosset was thus located in her expected place and was performing her expected role. Her work was unable to transgress the boundaries of domesticity in order to enter the legal realm. Drawing on imagined comparators of ‘most housewives’ and ‘the average housewife’, Lord Bridge was able to dismiss the contribution with the famous statement that

Lord Bridge instantly separated Mrs Rosset's work from the legal question of property rights by appealing to gendered expectations in the home. He also reinforced the sense that the private sphere is characterised by altruism rather than self-interested behaviour. By performing her expected role, in terms of both her work and its spatiotemporal setting, Mrs Rosset was denied a remedy.

The position of Janet Eves, the plaintiff in Eves v. Eves,Footnote ²³ was different. She was not married; indeed, she was referred to in the headnote as a ‘mistress’, with its connotations of a clandestine, precarious and, above all, socially unacceptable relationship, contravening the morality of domestic ideology. Spatially too, her work was located in a different zone to that of Mrs Rosset and fell outside the boundaries of what was expected of her. She ‘broke up concrete’ and ‘demolished a shed and put up a new shed’.Footnote ²⁴ Much of her work took place outside, was publicly visible and substantially changed the nature of the home rather than merely preserving it. She was awarded a share in the home because, in the words of Lord Denning, ‘she did much more than many wives would do’.Footnote ²⁵ Here, although speaking as if there was a consensus on what wives do, Lord Denning was measuring Janet Eves against a socially constructed ideal of domesticity. She had gone further than what she was expected to do as part of her wifely role and could therefore be rewarded with a share in the home.

That is not to say that it is always sufficient for female claimants to demonstrate that their work exceeds what is expected of them. The case-law shows that the home chronotope, namely the combination of the spatial setting of the home and the chrononormative temporal measure of a heterosexual marriage-like relationship, operates as a powerful obstacle to the claimant establishing that domestic contributions were motivated by an expectation of financial gain. For instance, in James v. Thomas,Footnote ²⁶ the claimant ‘drove a tipper, dug trenches, picked up materials, laid concrete, tarmac and gravel’.Footnote ²⁷ Her work went beyond mere housework, yet was held to be insufficiently connected to the question of property rights in the home. As Sir John Chadwick reasoned:

Sir John Chadwick's comments reflect the core elements of the ideology of domesticity and its belief in separate spheres. A conceptual distinction is made between the intimate relationship (where there is an expectation of female altruism) and selfish, market-based behaviour that reflects ‘pecuniary self-interest’. There is very much a sense that Ms James cannot be motivated by both: a choice must be made between domesticity and self-interest.

A comparison of the contrasting approaches in reasoning by the same judge, HHJ Paul Matthews, in two recent cases illuminates the distinction in perception between male and female claimants relying on contributions in the form of unpaid work. In Dobson v. Griffey Footnote ²⁹ – a case involving a female claimant who had undertaken significant renovation work of the property in question – HHJ Matthews acknowledged that ‘there can be no doubt that the claimant did a great deal of laborious work’.Footnote ³⁰ However, drawing on the home chronotope, he reasoned that

Once more, this reflects a perceived incompatibility between the private and the public that characterises the ideology of domesticity. HHJ Matthews assumed that, because the work took place in the context of the idealised heteronormative life course (e.g. a long-term married or quasi-married future and the expectation of children) and within the idealised and feminised space of the home, it could not also carry an expectation of a financial interest.

By contrast, his reasoning in Culliford & Another v. Thorpe Footnote ³² shows willingness to attribute commercial motivations to unpaid work performed by a male claimant in a relational context falling outside the heterosexual ideal. The claimant, Jocelyn Thorpe, was in a long-term partnership with Rodney Culliford, who died in 2016. The appeal concerned Mr Thorpe's claim for a declaration of trust and/or proprietary estoppel in respect of the home. In support of his claim, Mr Thorpe relied on the fact that he had carried out a significant amount of unpaid work in the home, including repairing the boiler and decorating the main bedroom. He said that he had done this in reliance on a conversation that he had had with the deceased in 2012, when the latter spoke words to the effect of ‘what is mine is yours and what it yours is mine’.Footnote ³³ HHJ Matthews found that ‘the defendant would not have done the work he did if there had not been an agreement of this kind between them’.Footnote ³⁴ Thus, the agreement (which consisted of a casual conversation when the parties were moving house) was given significant force through the use of contractual analogy. HHJ Matthews stressed that the court was ‘implementing the agreement – the informal bargain – between them’.Footnote ³⁵ In contrast to his approach in Dobson (where the parties had also talked informally about ownership), the parties’ casual conversation was stripped of its emotional and domestic context and treated similarly to an arm's-length transaction.

While male claimants can find it easier to convince the courts that their motivations for domestic work were financial rather than affectionate in nature, this may require their work to be removed from the time-space of the home and situated within an imagined market-place, where rational actors bargain for rights. In Wayling v. Jones,Footnote ³⁶ the plaintiff had cared for his male partner until the latter's death, including working unpaid in a hotel business. The deceased had on various occasions promised the plaintiff that he would inherit from him – a promise that was ultimately never fulfilled. The court's commercial approach was notable. The plaintiff was described by the trial judge as being ‘in [his partner's] service’ and was referred to by the Court of Appeal as ‘his chauffeur’, painting him very much in the light of an employee rather than an intimate partner (Flynn and Lawson, Reference Flynn and Lawson1995, p. 116). In order for his domestic work to be valuable, the claimant had to be symbolically separated from the powerful home chronotope. Additionally, the court in Wayling chose to lay particular emphasis on the aspects of work that were spatially separate from the home (e.g. his work in the hotels and as a driver), as well as re-characterising the relationship as one of employer and employee – one that belongs firmly in the public sphere.

That men's work is more readily categorised as commercial suggests that men's ideological tie to the home is not so profound as women's. Furthermore, it reflects the material reality of the spatiotemporal divisions between home and work. Men are naturally expected to inhabit the public sphere and they find the spatial and temporal traverse between the two easier than women do, both in real terms, through navigating the boundaries between home and work, and in a metaphorical sense, in the way that their conduct and motivations are interpreted by the judiciary.