Protecting women who provide security for a husband's, partner's or child's debts. the value and limits of an economic perspective

Abstract

In recent cases English, Australian, and New Zealand courts have been called on to deal with apparently similar fact situations of a woman entering into a mortgage, guarantee or joint loan contract with respect to a husband’s, partner’s or child's business debts, placing her home at risk. Yet the results and reasoning in the cases appear to be markedly different. The question is whether the apparent differences can be resolved to yield a coherent policy approach. It will be argued, drawing on an economic-feminist perspective that the cases can be resolved in terms of the courts’ preparedness to acknowledge only limited categories of behaviour and circumstances, when measured against the paradigm of the ‘rational economic man’, as displacing the assumption that contracting increases welfare.