Constitutions and Housework

Arvind Kurian Abraham

King’s College

The landmark judgment of the High Court of Kenya in MW v AN on 14th September, 2021, was lauded for recognizing the value of the housework performed by a housewife and for stating that she should be given a share in the matrimonial property, due to her contribution to the matrimonial home. Courts in India have developed tort jurisprudence on assessing the value of housework in connection with the distribution of compensation for motor vehicle accidents. While fields of private law have attempted to recognize the value of housework, I will briefly survey how housework is viewed by various constitutions and show that while the constitutional recognition of the value of housework marks an important step, it is the implementation of these progressive provisions through the political and judicial processes that is key to towards achieving gender-equality. 

Housework, which primarily consists of unpaid domestic and care-work (UDCW), is highly gendered around the world, with a disproportional number of women working as the primary-care takers of households. The labour of homemakers is rarely viewed as ‘work’, rather it is seen as gratuitous service. Housework is a major constituent of ‘reproductive labour’, i.e the activities that are undertaken within the home in order to allow a worker to rest and report back to work the next day. The lack of distribution of housework causes the homemaker to give up on the opportunity to work outside the home to earn an income and weakens her bargaining power within the household.  

One of the earliest constitutional provisions on housework, is Article 41.2.1 of the Constitution of Ireland, 1937, which states: 

‘In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.’ 

The gendered nature of this provision is evident, but it can also be viewed as a product of the values of the 1930s. The importance of family, and in particular the centrality of women as care-givers to the family, was recognized in several constitutions across Europe during that period. Provisions on the importance of family and motherhood can be seen in the Weimer Constitution, the Constitution of the Esthonian Republic, 1920, and the Constitution of the Republic of Spain, 1931, among others, which the drafters of the Irish Constitution were familiar with. However, the Irish Constitution was the first to explicitly link the benefit of housework with the common good. Éamon de Valera, one of the chief architects of the Constitution said that the provision must be seen as a tribute to the housework done by housewives. 

In L v. L, the High Court of Ireland argued that Article 41.2 required courts to take into consideration the work done by homemakers while determining a wife’s share in the matrimonial home. On appeal, the High Court’s line of interpretation was eventually rejected by the Supreme Court of Ireland, which reasoned that it was up to the legislature to make rules on the distribution of matrimonial property, and not the courts. 

In Sinnott v. Minister for Education, Justice Denham in her dissent reasoned that Article 41 must be read in light with the values of the 21st century, and therefore should not be read as restricting the rights of women, instead it should be seen as the recognition of the value of homemakers. 

Justice Murray of the Irish Supreme Court, in T. (D.) v. T. (C.), stressed on how it is the work of the housewives that facilitate the profession of their husbands, even though they have been viewed as dependents and not as a financial partners. He reasoned that courts should ‘attribute the same value to the contribution of a spouse who works primarily in the home as it does to that of a spouse who works primarily outside the home as the principal earner’, while determining the distribution of matrimonial property. 

The use of Article 41.2.1 in litigation to help women has been fairly limited, as recognized by the Constitutional Review Group. This is not surprising given the conservative approach taken by the Irish Supreme Court in L v. L. Nevertheless, it is the potential of Article 41.2.1 to help empower homemakers that led The Irish Human Rights and Equality Commission to recommend an amendment to make the provision gender neutral, instead of deleting it entirely. 

Article 36 of the Constitution of Cambodia states that housework shall have the same value as work outside the home. This recognition is important given the rigid gender norms in Cambodia, as embodied in the Chhab Srey, the code of conduct for Khmer women, which mandates women to stay at home and engage exclusively in domestic and care work. It has been argued by Kuong Teilee that Article 36 could be the consequence of the progressive trends in international labour norm-making in the 20th century and the active engagement of women’s groups in the transition period in Cambodia. However, it is difficult to assess this claim, given the lack of transparency in the drafting of the Cambodian Constitution. 

Unfortunately, Article 36 has not had any material impact on law and policy in Cambodia. This can be due to the weak political process and the absence of judicial independence, which have not invoked the potential of the constitutional text. Even the government data on women’s participation in the labour force does not recognize housework. 

The Constitution of Venezuela has several interesting provisions connected to UDCW. Article 76 recognizes both parents as care-givers to their children, instead of imposing the work only on women. Article 88 provides housewives the right to social security, in recognition of their work at home as an economic activity which is beneficial to society. This provision was cited by women’s movements, which ultimately culminated in the formation of the Misión Madres del Barrio (MMB) scheme in 2006. The scheme provides financial assistance to economically disadvantaged housewives and recognizes housework as valuable work. 

The Constitution of Ecuador also attributes value to housework. Breaking from the stereotype that care-giving is the domain of women, Article 69(1) states that both the parents are responsible for the well-being of their children. Article 34 guarantees the right to social security to those who engage in unpaid work in households. Article 369 mandates the state to provide healthcare services to those who carry out housework. 

Article 333 explicitly recognizes the productive value of housework and requires the state to promote sharing of housework between the men and women. The Article also states that social security should be progressively extended to persons who engage in ‘unpaid family work at home’, in accordance with the law. The impact of the state mandate could be seen in the social security reforms which were later undertaken. The Organic Law for Labor Justice and Recognition of Work at Home was enacted in 2015, which brought housewives under the ambit of social security protection. 

Gender-responsive constitutional provisions play an important role in securing gender equality. Given the gendered nature of housework, constitutional texts that recognize the value of housework, provide financial support to homemakers, and promote the distribution of care-work between the spouses, mark the beginning in the way towards achieving gender-equality. However, constitutional implementation of these progressive provisions is contingent upon on the structures of the political process and the judicial process. While the implementation of the constitutional provisions on housework have resulted in mixed results, they nevertheless enshrine important goals for States to achieve. 

Arvind Kurian Abraham is a lawyer and a Research Fellow affiliated with the Laws of Social Reproduction Project at King’s College, London. The Laws of Social Reproduction project has received funding from the European Union’s Horizon 2020 research and innovation programme (under grant agreement No. 772946).

Suggested Citation: Arvind Kurian Abraham, ‘Constitutions and Housework’ IACL-AIDC Blog (23 November 2021) https://blog-iacl-aidc.org/2021-posts/2021/11/23/constitutions-and-housework.