Render on a Feminist Blake v. Stradford

Meredith Render (University of Alabama - School of Law) has posted Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (in FEMINIST JUDGMENTS: REWRITTEN PROPERTY OPINIONS (Cambridge University Press, Eloisa Rodriguez-Dod and Elena Maria Marty-Nelson ed., 2021)) on SSRN.  Here is the abstract:

This piece engages in a reimagining of the classic property case of Blake v. Stradford through a feminist lens, as part of Cambridge University Press’s series, FEMINIST JUDGMENTS. In the original case, an unmarried male and female romantic couple resided together for several years (along with their children) in a house owned by the male partner. After several years of cohabitation, the couple’s romantic relationship came to an end, and the male partner moved to summarily evict the female partner as well as their two children. The Blake Court thus faced the question of whether a woman who resides in the family home with her male domestic partner and their children, is a licensee of her domestic partner (who legally owns the property). If she is a licensee, then she resides in the home at the invitation and permission of her partner, which can be revoked at any time. Had the Blake plaintiff been legally married to her partner, then there was no question that she would have a property interest in remaining in the home that exceeds the meager rights of a licensee. The Blake Court observed that under New York law of the time, “The occupation of a marital home by a wife is not possession existing by virtue of the permission of her husband. Her possession of the premises exists because of special rights incidental to the marriage contract and relationship.” However, the court concluded, because the parties here were never married, no such right of possession extended to the Blake plaintiff.

This piece rewrites that decision through the lens of feminist analysis. The reimagined decision questions the legitimacy of privileging marriage as a status, given the institution’s historical role as a mechanism for the commodification and exploitation of women’s reproductive capacity and labor. The reimagined decision declines to endorse the proposition that a married woman who resides in a family home with her children and their father lives there by an implicit right incident to marriage, while an unmarried woman who lives in a family home with her children and their father lives there by revocable permission. Implicit in such a distinction is the notion that a married woman, having secured that status of “wife” and thereby the imprimatur of patriarchal convention, will be rewarded by a special equitable consideration that is denied to a woman who has chosen to build her family outside the institution of marriage.